TRIBAL AND STATE JURISDICTION

TO

ESTABLISH AND ENFORCE CHILD SUPPORT

This publication was made possible through a contract with the Office of
Child Support Enforcement, Administration for Children and Families,
U.S. Department of Health and Human Services, Contract No. 105-00-8306.
Any statements, opinions, findings, or conclusions expressed herein do
not necessarily reflect the views or policies of this agency or the
American Bar Association.

**ACKNOWLEDGMENTS**

This publication was prepared under Contract No. 105-00-8306. The
Federal Office of Child Support Enforcement wishes to acknowledge the
work of Margaret Campbell Haynes, J.D., of Tier, and researchers Althea
Izawa-Hayden, J.D., of the American Bar Association, and Laura Bierley
(third year law student at the American University -- Washington College
of Law). David Selden, a librarian at the National Indian Law Library,
provided assistance in locating Tribal codes and case law. Professor
Carole Goldberg of UCLA School of Law provided consultation regarding
the jurisdiction discussion in Chapter Three. Appreciation is also
extended to members of the Federal Tribal/State Cooperation Workgroup,
who reviewed the draft publication and provided thoughtful comments.

The information in this publication is current as of December 2005.

\[page deliberately left blank\]

**PREFACE**

In 1991, the Federal Office of Child Support Enforcement (OCSE)
published [Tribal and State Court Reciprocity in the Establishment and
Enforcement of Child Support]{.underline}. In addition to legal
research, the publication identified barriers to, and possible solutions
for, Tribal and State court reciprocity in child support. The
publication included information from interviews conducted by the
American Bar Association with attorneys, judges, and child support
caseworkers who daily worked in State and Tribal courts. Organizations
such as the National Child Support Enforcement Association, the
Institute for Court Management, the Bureau of Indian Affairs, and the
American Indian Law Center also provided input.

Since 1991, there has been increased interaction between States and
Tribes in the area of child support. There are now nine Tribes receiving
Federal funding to operate Title IV-D child support programs. OCSE has
established a Tribal/State Cooperation Workgroup. The U.S. Supreme Court
has also issued several decisions regarding Tribal and State
jurisdiction. As a result of this activity, OCSE issued a task order to
revise its 1991 publication.

Unlike the first publication, the focus of this revised publication is
on legal research rather than identification of best practices.
Researchers used on-line internet resources , identified in the
Appendix, as well as traditional "law library" resources, in order to
identify Tribal and State case law, law review articles, and other
publications. The goal of this revised publication is to provide a
comprehensive legal resource for child support lawyers and
decision-makers, although Tribal and State caseworkers may also benefit
from the jurisdictional discussions and explanation of Federal
regulations regarding child support establishment and enforcement.

Historical information about Federal legislation affecting Tribes
provides a context for the discussion of jurisdictional issues in child
support cases. The publication is not intended to be a statement of
Federal/Tribal policy. For comprehensive information about the
relationship between Tribes, States, and the Federal government, readers
should consult the [Handbook of Federal Indian Law]{.underline} by Felix
Cohen, which is updated on a regular basis. The most recent update is
Nell Newton et al., eds., [Cohen's Handbook of Federal Indian
Law]{.underline} (2005 ed.).

\[page left deliberately blank\]

Table of Contents

[CHAPTER ONE: INTRODUCTION 1](#__RefHeading___Toc161206398)

[Overview 1](#overview)

[DEFINITIONS 2](#definitions)

[Indian 2](#__RefHeading___Toc161206401)

[Indian Country 3](#__RefHeading___Toc161206402)

[Reservation 4](#__RefHeading___Toc161206403)

[Tribe 4](#__RefHeading___Toc161206404)

[Trust Land 4](#__RefHeading___Toc161206405)

[Table of Statutes and Authorities
5](#table-of-statutes-and-authorities)

[CHAPTER TWO: HISTORY OF TRIBAL POWERS 7](#__RefHeading___Toc161206407)

[Prior to European Contact 7](#prior-to-european-contact)

[Post Formation of United States 7](#post-formation-of-united-states)

[The Eighteenth Century 7](#__RefHeading___Toc161206410)

[The Nineteenth Century 8](#__RefHeading___Toc161206411)

[The Twentieth Century 10](#__RefHeading___Toc161206412)

[The Twenty-First Century 15](#__RefHeading___Toc161206413)

[Table of Statutes and Authorities
18](#table-of-statutes-and-authorities-1)

[CHAPTER THREE: AN OVERVIEW OF TRIBAL COURT JURISDICTION
22](#__RefHeading___Toc161206415)

[Tribal Courts 22](#tribal-courts)

[Tribal Law 23](#tribal-law)

[Applicable Law in Civil Cases 23](#__RefHeading___Toc161206418)

[Tribal Territorial Jurisdiction 24](#tribal-territorial-jurisdiction)

[Tribal Subject Matter Jurisdiction
24](#tribal-subject-matter-jurisdiction)

[Federal Limitation on Tribal Jurisdiction
25](#federal-limitation-on-tribal-jurisdiction)

[Overview 25](#__RefHeading___Toc161206422)

[Federal Indian Country Criminal Laws 25](#__RefHeading___Toc161206423)

[Other Federal Legislation 26](#__RefHeading___Toc161206424)

[Public Law 280 26](#__RefHeading___Toc161206425)

[Tribal, Federal, or State Jurisdiction in Criminal Actions
32](#tribal-federal-or-state-jurisdiction-in-criminal-actions)

[Tribal or State Jurisdiction in Civil Actions
35](#tribal-or-state-jurisdiction-in-civil-actions)

[State Jurisdiction to Serve Process in Indian Country
38](#state-jurisdiction-to-serve-process-in-indian-country)

[Tribal Personal Jurisdiction 41](#tribal-personal-jurisdiction)

[Bases for Personal Jurisdiction 41](#__RefHeading___Toc161206430)

[Service of Process 43](#__RefHeading___Toc161206431)

[Table of Statutes and Authorities
46](#table-of-statutes-and-authorities-2)

[CHAPTER FOUR: JURISDICTION IN DOMESTIC LAW CASES
52](#__RefHeading___Toc161206433)

[Table of Statutes and Authorities
54](#table-of-statutes-and-authorities-3)

[CHAPTER FIVE: PATERNITY ESTABLISHMENT 56](#__RefHeading___Toc161206435)

[Determination of Paternity 56](#determination-of-paternity)

[Voluntary Acknowledgment 56](#__RefHeading___Toc161206437)

[Genetic Testing 57](#__RefHeading___Toc161206438)

[Judicial or Administrative Proceeding 57](#__RefHeading___Toc161206439)

[Custom 59](#__RefHeading___Toc161206440)

[Tribal or State Subject Matter Jurisdiction
59](#tribal-or-state-subject-matter-jurisdiction)

[Member Indian Mother and Member Indian Alleged Father/Reside on
Reservation 60](#__RefHeading___Toc161206442)

[Member Indian Mother and Member Indian Alleged Father/One Member
Resides off Reservation 63](#__RefHeading___Toc161206443)

[Member Indian Mother and Member Indian Alleged Father/Both Parents
Reside off Reservation 65](#__RefHeading___Toc161206444)

[Member Indian Mother and Non-Member/Non-Indian Alleged Father
65](#__RefHeading___Toc161206445)

[Non-Indian/Non-Member Mother and Indian Alleged Father
67](#__RefHeading___Toc161206446)

[Non-Indian Mother and Non-Indian Alleged Father
68](#__RefHeading___Toc161206447)

[Table of Statutes and Authorities
70](#table-of-statutes-and-authorities-4)

[CHAPTER SIX: SUPPORT ESTABLISHMENT 72](#__RefHeading___Toc161206449)

[DETERMINATION OF SUPPORT OBLIGATION
72](#determination-of-support-obligation)

[Judicial or Administrative Proceeding 72](#__RefHeading___Toc161206451)

[Determination of Support Amount 72](#__RefHeading___Toc161206452)

[TRIBAL OR STATE SUBJECT MATTER JURISDICTION
75](#tribal-or-state-subject-matter-jurisdiction-1)

[Member Indian Custodian and Member Indian Noncustodian/Reside on
Reservation 75](#__RefHeading___Toc161206454)

[Member Indian Custodian and Member Indian Noncustodian/One Member
Resides off Reservation 78](#__RefHeading___Toc161206455)

[Member Indian Custodian and Member Indian Noncustodian/Both Parents
Reside off Reservation 79](#__RefHeading___Toc161206456)

[Member Indian Custodian and Non-Member/Non-Indian NonCustodian
79](#__RefHeading___Toc161206457)

[Non-Indian/Non-Member Custodian and Indian NonCustodian
80](#__RefHeading___Toc161206458)

[Non-Indian Custodian and Non-Indian NonCustodian
81](#__RefHeading___Toc161206459)

[Table of Statutes and Authorities
82](#table-of-statutes-and-authorities-5)

[CHAPTER SEVEN: MEDICAL SUPPORT ENFORCEMENT
84](#__RefHeading___Toc161206461)

[State Title IV-D Requirements 84](#state-title-iv-d-requirements)

[Definition 84](#__RefHeading___Toc161206463)

[Support Guidelines 84](#__RefHeading___Toc161206464)

[Health Insurance Coverage 87](#__RefHeading___Toc161206465)

[National Medical Support Notice 88](#__RefHeading___Toc161206466)

[Tribal Title IV-D Requirements 89](#tribal-title-iv-d-requirements)

[Table of Statutes and Authorities
92](#table-of-statutes-and-authorities-6)

[CHAPTER EIGHT: MODIFICATION OF SUPPORT
94](#__RefHeading___Toc161206469)

[State Title IV-D Requirements 94](#state-title-iv-d-requirements-1)

[Tribal Title IV-D Requirements 95](#tribal-title-iv-d-requirements-1)

[InterState/Intergovernmental Cases
95](#interstateintergovernmental-cases)

[Table of Statutes and Authorities
98](#table-of-statutes-and-authorities-7)

[CHAPTER NINE: SUPPORT ENFORCEMENT 100](#__RefHeading___Toc161206474)

[Enforcement Remedies 100](#enforcement-remedies)

[State Title IV-D Requirements 100](#__RefHeading___Toc161206476)

[Tribal Title IV-D Requirements 103](#__RefHeading___Toc161206477)

[Recognition of Judgments 105](#recognition-of-judgments)

[Full Faith and Credit 105](#__RefHeading___Toc161206479)

[Comity 105](#__RefHeading___Toc161206480)

[Enforcement of Tribal Support Order
106](#enforcement-of-tribal-support-order)

[Obligor (Indian or Non-Indian) Resides and Works on Reservation
106](#__RefHeading___Toc161206482)

[Obligor (Indian or non-Indian) Resides on Reservation but Works off
Reservation 107](#__RefHeading___Toc161206483)

[Enforcement of State Support Order
108](#enforcement-of-state-support-order)

[Obligor (Indian or non-Indian) Resides and Works off Reservation
108](#__RefHeading___Toc161206485)

[Indian Obligor Resides and Works on Reservation
108](#__RefHeading___Toc161206486)

[Indian Obligor Resides on Reservation but Works off Reservation
110](#__RefHeading___Toc161206487)

[Indian Obligor Resides Off Reservation but Works on Reservation
110](#__RefHeading___Toc161206488)

[Non-Member or Non-Indian Obligor Resides and Works on Reservation
111](#__RefHeading___Toc161206489)

[Non-Member or Non-Indian Obligor Resides off Reservation but Works on
Reservation 112](#__RefHeading___Toc161206490)

[Non-Member or Non-Indian Obligor Resides on Reservation but Works off
Reservation 112](#__RefHeading___Toc161206491)

[Table of Statutes and Authorities
114](#table-of-statutes-and-authorities-8)

[CHAPTER TEN: EFFORTS AT FACILITATING INTERJURISDICTIONAL SUPPORT
ENFORCEMENT 118](#__RefHeading___Toc161206493)

[Tribal and State Child Support Programs
118](#tribal-and-state-child-support-programs)

[Cooperative Agreements 119](#cooperative-agreements)

[Intergovernmental Agreements 120](#intergovernmental-agreements)

[Table of Statutes and Authorities
122](#table-of-statutes-and-authorities-9)

[CONCLUSION 124](#conclusion)

[Appendix A - Internet Resources 126](#__RefHeading___Toc161206499)

[Appendix B - Public Law 280 130](#__RefHeading___Toc161206500)

[Appendix C - Full Faith and Credit for Child Support Orders
136](#__RefHeading___Toc161206501)

# 

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# 

# 

**CHAPTER ONE**[]{#__RefHeading___Toc161206398 .anchor}

**INTRODUCTION**

# Overview

According to data submitted to the Federal Office of Child Support
Enforcement, State child support agencies reported 15.9 million child
support cases in FY 2004.[^1] These cases resulted in the establishment
or acknowledgment of 1.6 million paternities, the establishment of 1.2
million new child support orders, and the collection and distribution of
\$21.9 billion in child support payments.[^2] Such data do not include
child support cases handled outside of the IV-D program. Nor do they
include Tribal cases. The collections represented about 59% of the total
current amount due and a collection in about 60% of arrears cases.[^3]
Such data do not include child support cases handled outside of the IV-D
program. Nor do they include Tribal cases.

During the same period, nine Tribes operating Federally funded IV-D
child support programs reported 26,425 child support cases.[^4] These
cases resulted in the establishment of 2,773 paternities, the
establishment of 10,211 support orders, and the collection and
distribution of \$12.4 million in child support payments.[^5] Such data
do not include child support cases heard within the legal system of
those nine Tribes that were not processed through the Tribal IV-D
program. Nor do they include child support cases arising within the
other 553 Federally recognized Tribal governments.

Although there are information gaps, it is clear from the above
statistics that there are large numbers of children entitled to child
support for whom enforcement remains a problem. To date, most of the
focus has been on improving interState enforcement between States.
However, many of the same issues that arose in years past in the
interState arena -- lack of reciprocity in enforcement, service of
process problems, poor communication -- are present today when there is
interaction between a State and an American Indian Tribe. [^6]

In 1989, a project funded by the State Justice Institute surveyed
various individuals in the 32 States with Federally recognized Indian
Tribes. The second most frequently cited area of disputed jurisdiction
cases was that of domestic relations cases\--divorce, child custody, and
support.[^7] Specifically, in the area of child support enforcement, the
following problems were cited: \"a non-Indian spouse may challenge a
Tribal court child support order accompanying a divorce; a reservation
Indian may seek to reject a State court\'s jurisdiction with child
support; a Tribe member may seek to reject a State court process served
on the reservation.\"[^8] Tribal court judges have raised similar
concerns. In a 1999 survey of Tribal court judges in the lower 48
States, 80% of the respondents indicated that they had encountered
problems having their Tribal court judgments enforced in State forums --
even when the States are required to do so by Federal law.[^9]

Over 40% of the difficulties with State court recognition of Tribal
court orders related to subject matters covered by the Federal full
faith and credit mandates of the Violence Against Women Act[^10] and the
Full Faith and Credit for Child Support Orders Act.[^11] In hearings
before the U.S. Commission on InterState Child Support, American Indians
also cited the need for State courts to be more sensitive to Tribal
custom and collection procedures, and the need for expedited
modification or review procedures when a State support order is based on
imputed wages, which may be unrealistic for obligors living on Indian
reservations.[^12]

In 1991, the Federal Office of Child Support Enforcement published the
first edition of [Tribal and State Court Reciprocity in the
Establishment and Enforcement of Child Support]{.underline}. The
publication documented efforts by States and Tribes to address these
issues through intergovernmental efforts. Innovations included
intergovernmental forums addressing jurisdiction issues,
intergovernmental agreements regarding support enforcement, specially
drafted court rules, and uniform registration statutes addressing mutual
recognition of State and Tribal support orders. This second edition
updates the 1991 publication, with an emphasis on changes in law. The
most dramatic change since 1991 is the advent of Federally funded Tribal
child support programs.

# DEFINITIONS

**[Indian]{.underline}**[]{#__RefHeading___Toc161206401 .anchor}
According to the 2002 U.S. Census, there are about 4 million people who
identified themselves as American Indian, Alaska Native, or a
combination of Indian and other races. There are many legal definitions
of \"Indian.\" For example, under some Federal laws, an Indian is anyone
of Indian descent.[^13] Other Federal laws define \"Indian\" as a member
of a \"Federally recognized\" Indian Tribe.[^14] Federal regulations
governing the Tribal IV-D program (45 C.F.R. § 309.05) define "Indian"
as "a person who is a member of an Indian Tribe." They then define
"Indian Tribe" as "any Indian or Alaska Native Tribe, band, nation,
pueblo, village, or community that the Secretary of the Interior
acknowledges to exist as an Indian Tribe and includes in the list of
Federally-recognized Indian Tribal governments as published in the
Federal Register pursuant to 25 U.S.C. 479a-1." Still other Federal laws
use the word \"Indian\" without defining it.[^15] Additionally, each
Indian Tribe has its own enrollment requirements. Enrollment is usually
based on either descent or blood quantum. Therefore, a person who is not
considered a member of a Tribe because he or she lacks the requisite
percentage of Tribal blood may nevertheless be considered an Indian
under Federal law. Similarly, a non-Indian adopted into Tribal
membership may not be considered an Indian under Federal law.[^16]

**[Indian Country]{.underline}**[]{#__RefHeading___Toc161206402 .anchor}
\"Indian country\" is defined in a Federal statute addressing criminal
jurisdiction:

\"Indian country\" . . . means (a) all land within the limits of an
Indian reservation under the jurisdiction of the United States
government, notwithstanding the issuance of any patent, and including
rights-of-way running through the reservation, (b) all dependent Indian
communities within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether within
or without the limits of a State, and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including
rights-of-way running through the same.[^17]

Presumably, this definition would also apply to civil jurisdiction (for
which there is no comparable Federal statute). The definition is
significant because it means that land owned by a non-Indian that is
located within an Indian reservation is still considered Indian country.
Also, trust and restricted Indian allotments that are located outside of
a reservation are considered Indian country.

\"Indian country\" and \"Indian reservation\" are often used
synonymously but they are not identical. As noted above, Indian country
can include trust and restricted Indian allotments that are outside of
the reservation. Proper identification of Indian country is crucial in
any discussion of Tribal court jurisdiction. If there is a dispute,
proof is an issue of law to be decided by a judge rather than a
jury.[^18]

**[Reservation]{.underline}**[]{#__RefHeading___Toc161206403 .anchor} A
reservation is land under the jurisdiction of Indian Tribes, bands, or
communities, and the Federal government, as opposed to the States in
which they are located. It covers territory over which a Tribe(s) has
primary governmental authority. Its boundary is defined by Tribal
treaty, agreement, executive or secretariat order, Federal statute, or
judicial determination.[^19]

**[Tribe]{.underline}**[]{#__RefHeading___Toc161206404 .anchor} A Tribe
is a group of Indians that has had a certain autonomous political status
since the time of its first contact with European settlers. They have a
government-to-government relationship with the United States, which
finds its basis in the Constitution. In discussing jurisdictional
issues, the term "Tribe" refers to a group of American Indians protected
by a trust relationship with the Federal government.[^20]

This special relationship with the United States only applies to Tribes
that are "recognized" by the Federal government. Such recognition has
its origins in treaties, Acts of Congress, Executive Orders, rulings by
Federal courts, or the modern Federal acknowledgment process at the
Department of the Interior.[^21] As of 2005, there are about 1.5 million
Indians who are enrolled in 562 Federally recognized Tribes. These
Tribes are located in 32 of the contiguous States and Alaska.

Each Tribe establishes its own criteria for enrollment. These criteria
are set forth in Tribal constitutions, articles of incorporation, or
ordinances. Usually, to enroll as a Tribal member, a person must meet
Tribal requirements regarding descent or blood quantum. Tribal
membership is not contingent on residency. Each Tribe maintains its own
enrollment records. As a general rule, a person cannot have dual
enrollment status.

**[Trust Land]{.underline}**[]{#__RefHeading___Toc161206405 .anchor}
"Trust lands" are lands owned either by a Tribe or by an individual
Indian, and the United States acts as trustee to the Tribe or the
individual Indian. The land cannot be sold, transferred, leased or used
by someone else unless approved by the Federal government. It is not
subject to most State jurisdiction, including taxation and condemnation,
but it is subject to rules and administration of the Federal government.

**CHAPTER ONE**

# Table of Statutes and Authorities

######## Statutes and Regulations

18 U.S.C. § 1151

18 U.S.C. § 2265

25 U.S.C. § 451

25 U.S.C. § 452

25 U.S.C. § 456

25 U.S.C. § 479

28 U.S.C. § 1738B

**[Case Law]{.underline}**

*United States v. Rogers*, 45 U.S. 567 (1846)

*United States v. Levesque*, 681 F.2d 75 (1^st^ Cir. 1982), *cert.
denied* 459 U.S. 1089 (1982)

*United States v. Sohappy*, 770 F.2d 816 (9^th^ Cir. 1985), *cert.
denied* 477 U.S. 906 (1986)

*State v. Atteberry*, 519 P.2d 53 (Ariz. 1974)

**[Periodicals/Publications]{.underline}**

F. Cohen, Handbook of Federal Indian Law (ed. 1982).

North Dakota Department of Human Services, Journey to Understanding: An
Introduction to North Dakota Tribes (2003) (written under contract by
the Native American Training Institute).

Office of Child Support Enforcement, U.S. Dept. of Health & Human Serv.,
Child Support Enforcement (CSE) FY 2004, Preliminary Report to Congress.

Reeds, *Cross-Jurisdictional Recognition and Enforcement of Judgments: A
Tribal Court Perspective*, 76 N.D. L. Rev. 311 (2000).

Rubin, *Tribal Courts and State Courts: Disputed Civil Jurisdiction
Concerns and Steps Toward Resolution*, State Ct. J. 9 (Spring 1990).

U.S. Commission on InterState Child Support, Supporting Our Children: A
Blueprint for Reform (U.S. Gov't Printing Office: Washington, DC 1992).

**CHAPTER TWO**[]{#__RefHeading___Toc161206407 .anchor}

**HISTORY OF TRIBAL POWERS**

# 

# Prior to European Contact

Most Indian Tribes had developed their own forms of self-government long
before contact with European nations. Although the forms of government
varied, the traditional decision-making body was the Tribal council.
Council leaders were usually consensus-oriented, achieving "control over
members by persuasion and inspiration, rather than by peremptory
commands."[^22] Historically, Indian Tribes had no written laws. Conduct
was governed by custom. Sanctions for violation of the norm of conduct
included mockery, ostracism, and religious sanctions. Tribal justice
also often included restitution or compensation to the injured party.

Contact with European nations -- and increasing interaction with
American society -- forever changed Tribal government. However, Tribal
sovereignty was recognized even then; various foreign governments
negotiated treaties with American Indian Tribes, obtaining land in
exchange for small goods, money, or promises.

# Post Formation of United States

A Tribe's presence within the territorial boundaries of the United
States subjects the Tribe to Federal legislative power. Tribes can no
longer exercise external powers of a sovereign, such as entering into
treaties with foreign countries.[^23] However, that does not mean that
all preexisting Tribal powers are abolished. The guiding principle is
that Tribal powers are exclusive in matters of internal self-government,
except to the extent that such powers have been limited by Federal
treaties or statutes.

**[The Eighteenth Century]{.underline}**[]{#__RefHeading___Toc161206410
.anchor}

In 1775, the Continental Congress created three departments of Indian
affairs, which had responsibility for maintaining relations with Indian
Tribes in order to assure their neutrality during the Revolutionary
War.[^24]

In 1789 -- the first year of the first U.S. Congress -- there were three
statutes passed that affected Indians. The Act of August 7, 1789 created
the Department of War. In addition to handling military affairs, the
Department was required to handle "such other matters . . . as the
President of the United States shall assign . . . relative to Indian
affairs." The second statute required respect for Indian rights in the
governance of the Northwest Territory. The third law also recognized the
sovereign status of Indian Tribes by appropriating a sum not exceeding
\$20,000 to defray "the expense of negotiating and treating with the
Indian Tribes."

**[The Nineteenth Century]{.underline}**[]{#__RefHeading___Toc161206411
.anchor} The first major Federal act impacting on Tribal jurisdiction
was the General Crimes Act of 1817.[^25] It gave the Federal government
jurisdiction over crimes committed by Indians against non-Indians within
Indian country, so long as the Indian involved had not been punished
under the law of the Tribe. The General Crimes Act also gave the Federal
government exclusive jurisdiction over crimes committed by non-Indians
against Indians. Significantly, Indian nations retained exclusive
jurisdiction over crimes committed by Indians against other
Indians.[^26]

There were also three U.S. Supreme court decisions between 1823 and 1832
that addressed Tribal self-government: *Johnson v. McIntosh*, 21 U.S. (8
Wheat.) 543 (1823); *Cherokee Nation v. Georgia*, 30 U.S. (5 Pet.) 1
(1831) and *Worcester v. Georgia*, 31 U.S. (6 Pet.) 515 (1832).

In *Cherokee Nation v. Georgia*, the Cherokee Nation filed in the
Supreme Court a motion for injunction against the State of Georgia to
restrain the State from executing and enforcing the laws of Georgia
within the Cherokee nation. The Court first addressed whether it had
jurisdiction under Article 3 of the Constitution, which gives the Court
jurisdiction over disputes between a State or the citizens thereof and a
foreign State. Although the Court concluded that the Supreme Court
lacked jurisdiction because an Indian Tribe within the United States is
not a foreign State in the sense of the Constitution, Chief Justice
Marshall highlighted the unique sovereign status of Tribes. He
introduced the phrase "domestic dependent nations" as a way to describe
the status of American Indian Tribes, stating that the relationship
between Tribes and the United States resembled that of "a ward to his
guardian."

*Worcester v. Georgia* was particularly supportive of Tribal
sovereignty. In 1829, Georgia had passed a law to add Cherokee territory
to certain Georgia counties and to extend Georgia laws over the same. In
1830, Georgia passed another law making it unlawful for anyone, "under
the pretext" of authority from the Cherokee Tribe, to meet or assemble
as a council for the purpose of making laws for the Tribe, or to hold
court or serve process for the Cherokee Tribe. It also made it unlawful
for a white person to live within the Cherokee nation without a license
from the Georgia governor, in which the person swore to uphold Georgia
laws while within the Cherokee nation. Worcester, a Vermont resident who
resided in the Cherokee nation in order to preach Christianity, was
convicted of violating the law. The Supreme Court issued a writ of
error, ordering Georgia to appear before the Court to show why its act
was not unconstitutional. In *Worcester*, the Court acknowledged that
war and conquest give certain rights to the conquering State. However,
the relation between the Cherokee Nation and the United States was "that
of a nation claiming and receiving the protection of one more powerful;
not that of individuals abandoning their national character."
Specifically, the Court held that the Cherokee Nation was a distinct
community over which the Cherokee Nation had exclusive authority and in
which State laws had no force.

Despite the Supreme Court's recognition of Tribal sovereignty, the
period from 1815 to 1845 was also the height of the Removal Era.
President Andrew Jackson advised the Choctaw, Chickasaw, Cherokee,
Creek, and Seminole Tribes to move west of the Mississippi River or be
subject to the laws of the States of Georgia and Alabama. From 1845 to
1887, thousands of settlers seeking gold, land, and adventure took over
this "promised" land west of the Mississippi. From 1817 to the late
1880s, approximately 42 different Tribes were forcibly relocated to
"Indian country."

The Removal Era also gave rise to what are known as assimilationist
policies -- attempts to "civilize" Native Americans by indoctrinating
them into "Western" religion, views on land ownership, and trade. The
end of the nineteenth century marked a shift from the earlier
recognition of Tribal self-government to legislative curtailment of the
powers of Indian Tribes.

In 1883 the U.S. Supreme Court decided the case of *Ex parte Crow Dog*,
109 U.S. 556 (1883). Crow Dog had killed a fellow Sioux, Spotted Tail.
Tribal law required that Crow Dog support the family of Spotted Tail; it
did not provide for other punishment such as imprisonment. The family of
Spotted Tail accepted the Tribal punishment. However, due to a public
outcry in the States, the Federal government prosecuted Crow Dog in
Federal court where he was convicted and sentenced to death. The Supreme
Court reversed, concluding that the "pledge to secure to these people .
. . an orderly government . . . necessarily implies . . . the regulation
by themselves of their own domestic affairs, the maintenance of order
and peace among their own members by the administration of their own
laws and customs." The Court recognized the possibility of Congress'
placing limits on Tribal self-government but only if Congress did so in
clear language.

Two years later, Congress responded with passage of the Major Crimes
Act. The Act only applies to Indian defendants. It makes it a Federal
crime for an Indian to commit certain major crimes \-- such as murder,
rape, and arson \-- against either an Indian or a non-Indian in Indian
country. According to several commentators, it is unclear whether such
Federal jurisdiction is exclusive or whether Tribal courts have
concurrent jurisdiction over the crimes listed.[^27]

Two years later, in 1887, Congress passed the General Allotment Act.
This Act provided for the division of Tribal lands into 160-acre parcels
allotted to individual Indians and for the sale of "surplus" Tribal
lands to non-Indians. The allotment system was designed to break up
reservations and dilute the powers of Tribal governments. By 1934,
Indians had lost two-thirds of their land: from 148 million acres in
1887 to 48 million acres in 1934.

It was during this "assimilation era" that the Bureau of Indian Affairs
instituted Courts of Indian Offenses (referred to as BIA or CFR courts).
These courts were run by the BIA Indian agent for each reservation
pursuant to legal codes and procedures established by the BIA. Indian
judges were hired and fired by the BIA. Even the police were chosen by
the BIA. The courts had the power to resolve Tribal civil disputes and
minor criminal offenses. However, the structure imposed by the BIA
undermined the authority of Indian chiefs and traditional Tribal
self-government.

**[The Twentieth Century]{.underline}**[]{#__RefHeading___Toc161206412
.anchor} President Roosevelt renounced this policy of autocratic rule
over Indians in signing the Indian Reorganization Act of 1934.[^28] The
Act reflected conflicting philosophies toward Tribal self-government. On
the one hand, the Act abolished the allotment policy. It also guaranteed
the right of any Indian Tribe to "organize for its common welfare,"
including the adoption of an "appropriate constitution and bylaws." On
the other hand, it gave the Secretary of the Interior the authority to
provide technical advice and assistance as the Secretary determined was
needed. It replaced the traditional consensus decision-making approach
of Tribes with a requirement that the constitution and by-laws would
become effective when ratified \"by a majority vote of the adult members
of the Tribe\" in a special election. Finally, it required the Secretary
to "review the final draft of the constitution and bylaws . . . to
determine if any provision" was contrary to applicable laws.
Historically, Indian Tribes had governed through custom rather than
formal written laws.[^29] The Indian Reorganization Act resulted in
Tribes ratifying constitutions and laws that, in large part, copied BIA
codes.[^30]

Congressional attitude toward Indian Tribes, as reflected in
legislation, has varied in the years since the Indian Reorganization
Act. In the 1950's Congress passed several termination acts that
resulted in the termination of 109 Tribes as Federally recognized,
self-governing entities.[^31] In 1953, Congress also enacted Public Law
280. Discussed in greater detail later, Public Law 280 authorized States
to impose State civil and criminal jurisdiction over reservations, with
or without Tribal consent.

The 1960's saw passage of the Indian Civil Rights Act.[^32] As noted by
the Supreme Court in *Santa Clara Pueblo v. Martinez*, 436 U.S. 49
(1978), there were two "distinct and competing" purposes in the Act. One
objective was to promote Indian self-government and protect Tribal
sovereignty from undue interference. For example, the Act narrowed the
reach of Public Law 280 by requiring Tribal consent in order for Public
Law 280 jurisdiction to be extended over reservations in the future. A
second objective was to strengthen the position of individual Tribal
members vis-à-vis the Tribe. Thus, the Act legislatively applied nearly
all of the Bill of Rights to Tribal courts and governments. Another
aspect of the Act that affected Tribal self-government was its
limitation on Tribal court criminal punishment to six months and \$500.
Congress later raised those limits to one year and \$5000.[^33]

Since 1970, there have been a number of Congressional acts affirming
Tribal self-government. The Indian Financing Act of 1974 provides
financial assistance to Tribal governments. The Indian
Self-Determination and Education Assistance Act of 1975[^34] authorizes
Federal grants to Tribes specifically to improve Tribal governments. It
also authorizes Indian Tribes to enter into "self-determination
contracts" with the Secretary of the Interior and the Secretary of
Health and Human Services to administer programs or services that
otherwise would be administered by the Federal government. The Indian
Child Welfare Act of 1978 (ILWA) recognizes the importance of Tribal
control over custody and adoption proceedings. In 1991, Congress amended
the Indian Civil Rights Act to define the "powers of self-government" to
include "the inherent power of Indian Tribes, hereby recognized and
affirmed, to exercise criminal jurisdiction over all Indians."[^35] In
1994 Congress enacted the Federal Full Faith and Credit for Child
Support Orders Act.[^36] The Act requires a State to recognize and
enforce another State's child support order. "State" is defined as "a
State of the United States, the District of Columbia, the Commonwealth
of Puerto Rico, the territories and possessions of the United States,
and Indian country (as defined in section 1151 of title 18)." Therefore,
States and Tribes are required to recognize and enforce valid Tribal
child support orders, without regard to whether such orders were issued
by a State or Tribal court or agency.

Finally, amendments to the Personal Responsibility and Work Opportunity
Reconciliation Act of 1996 authorize Federal funding to an Indian Tribe
or Tribal organization that demonstrates the capacity to operate a child
support enforcement program that meets the objectives of Title IV-D,
"including the establishment of paternity, establish, modification, and
enforcement of support orders, and location of absent parents."[^37] The
Act also provides that State IV-D agencies may enter into cooperative
agreements with an Indian Tribe, Tribal organization, or Alaska Native
Village, group, regional or village corporation so long as it "has an
established Tribal court system or Court of Indian Offenses with the
authority to establish paternity, establish, modify or enforce support
orders or to enter support orders in accordance with child support
guidelines established or adopted by such Tribal entity."[^38]

United States Presidents have also been vocal in supporting Tribal
sovereignty. President Johnson recognized \"the right of the first
Americans . . . to freedom of choice and self-determination.\" President
Nixon strongly encouraged \"self-determination\" among the Indian
people. President Reagan pledged \"to pursue the policy of
self-government\" for Indian Tribes and reaffirmed \"the
government-to-government basis\" for dealing with Indian Tribes.
President George H.W. Bush recognized that the Federal government\'s
\"efforts to increase Tribal self-governance have brought a renewed
sense of pride and empowerment to this country\'s native peoples.\" At a
1994 meeting with the heads of Tribal governments, President Clinton
reaffirmed the United States\' \"unique legal relationship with Native
American Tribal governments\" and issued a directive to all executive
departments and Federal agencies that, as they undertook activities
affecting Native American Tribal rights or trust resources, such
activities should be implemented in a knowledgeable, sensitive manner
respectful of Tribal sovereignty. The directive also required the
executive branch to consult, to the greatest extent practicable and
permitted by law, with Indian Tribal governments before taking actions
that affect Federally recognized Indian tribes. Executive Order 13175,
entitled Consultation and Coordination with Indian Tribal Governments,
was issued in 2000.

More recently, President George W. Bush, Jr. reaffirmed the principles
of Tribal sovereignty and self-determination for Tribal governments in
the United States. On April 30, 2004, he signed Executive Order 13336,
entitled American Indian and Alaska Native Education, which devotes
greater assistance to American Indian and Alaska Native students in
meeting the academic standards of the No Child Left Behind Act in a
manner that is consistent with Tribal traditions, languages, and
cultures. On September 23, 2004, he issued an Executive Memorandum that
reinforces the unique government-to-government relationship with Indian
Tribes and Alaska natives. Recognizing the existence and durability of
the unique government-to-government relationship between the United
States and Indian tribes and Alaska Native entities, President Bush
stated that "it is critical that all departments and agencies adhere to
these principles and work with Tribal governments in a manner that
cultivates mutual respect and fosters greater understanding to reinforce
these principles."

The United States Supreme Court also has held repeatedly that Indian
Tribes retain "attributes of sovereignty over both their members and
their territory."[^39] However, in the last quarter of the century, its
decisions increasingly pointed out the limits of Tribal jurisdiction
over non-Indians or nonmember Indians: *Oliphant v. Suquamish Tribe*,
435 U.S. 191 (1978); *United States* *v. Wheeler*, 435 U.S. 313 (1978);
*Montana v. United States*, 450 U.S. 544 (1981); *Duro v.* *Reina*, 495
U.S. 676 (1990); and *Strate v. A-1 Contractors*, 520 U.S. 438 (1997).

Three of the cases involved Tribal jurisdiction in criminal cases. In
*Oliphant*, the Court held that, by submitting to the overriding
sovereignty of the United States, Indian Tribes necessarily gave up
their power to try non-Indian citizens of the United States except as
authorized by Congress. In *Wheeler,*[^40] the Court upheld the power of
a Tribe to punish Tribal members who violate Tribal criminal laws. It
found that Tribal sovereignty over an Indian offender had not been
divested as a result of the dependent status of Tribes. However, the
Court noted that the powers of self-government involve only the
relations among members of a Tribe, such as the power to punish Tribal
offenders, and the inherent powers to determine Tribal membership, to
regulate domestic relations among members, and to prescribe rules of
inheritance for members: "The areas in which such implicit divestiture
of sovereignty has been held to have occurred are those involving the
relations between an Indian tribe and nonmembers of the tribe."[^41] In
*Duro*, the Court directly addressed the issue of jurisdiction over
nonmember Indians, i.e., Indians who are not enrolled members of the
Tribe whose jurisdiction is invoked. It extended the ruling in
*Oliphant* to deny Tribal courts criminal jurisdiction over nonmember
Indians.[^42]

Another Supreme Court case focused on Tribal regulatory authority.
*Montana v. United States* involved a Tribal regulation of the Crow
Tribe of Montana, which prohibited hunting and fishing within the
reservation by any nonmember of the Tribe, including on lands within the
reservation owned by nonIndians. The State of Montana, however,
continued to assert its authority to regulate hunting and fishing by
non-Indians within the reservation. The United States filed an action in
the Supreme Court seeking a declaratory judgment establishing that the
Tribe and the United States had sole authority to regulate hunting and
fishing within the reservation, and an injunction requiring Montana to
obtain the Tribe's permission before issuing licenses for use within the
reservation. The Supreme Court concluded that, while the Tribe may
regulate hunting or fishing by nonmembers on land belonging to the Tribe
or held in trust for the Tribe, it had no power to regulate non-Indian
fishing and hunting on reservation land owned by nonmembers of the
Tribe. The court cited *Oliphant* in stating that "exercise of Tribal
power beyond what is necessary to protect Tribal self-government or to
control internal relations is inconsistent with the dependent status of
the Tribes, and so cannot survive without express congressional
delegation." The Court found that regulation of hunting and fishing by
nonmembers of a Tribe on land no longer owned by the Tribe did not bear
a clear relationship to Tribal self-government or to internal relations.

There is language in *Montana* that became especially important in the
later case of *Nevada v. Hicks*. Writing for the majority, Justice
Stewart stated:

> Though *Oliphant* only determined inherent Tribal authority in
> criminal matters, the principles on which it relied support the
> general proposition that the inherent sovereign powers of an Indian
> Tribe do not extend to the activities of nonmembers of the Tribe. To
> be sure, Indian Tribes retain inherent sovereign power to exercise
> some forms of civil jurisdiction over non-Indians on their
> reservations, even on non-Indian fee lands. A Tribe may regulate,
> through taxation, licensing, or other means, the activities of
> nonmembers who enter consensual relationships with the Tribe or its
> members, through commercial dealing, contacts, leases, or other
> arrangement. . . . A Tribe may also retain inherent power to exercise
> civil authority over the conduct of non-Indians on fee lands within
> its reservation when that conducts threatens or has some direct effect
> on the political integrity, the economic security, or the health or
> welfare of the Tribe. . . .No such circumstances, however, are
> involved in this case.[^43]

The last case, *Strate v. A-1 Contractors*, involved Tribal adjudicatory
authority in a civil action. There was a car accident, involving
non-Indians, which occurred on a North Dakota public highway that ran
through the Fort Berthold Indian Reservation. One of the drivers was a
widow of a deceased Tribal member whose adult children were also Tribal
members. She filed a personal injury action in Tribal Court, which ruled
that it had jurisdiction over the claim. The respondent, who was the
employer of the other driver, filed an action in Federal district court,
seeking a declaratory judgment that, as a matter of Federal law, the
Tribal Court lacked jurisdiction to adjudicate the personal injury
action. The District Court dismissed the action, determining that the
Tribal Court had civil jurisdiction. The Eighth Circuit reversed.
Relying on *Montana*, it concluded that the Tribal court lacked subject
matter jurisdiction over the dispute. The Supreme Court agreed, and
affirmed the decision of the Eighth Circuit.

Justice Ginsburg delivered the opinion for a unanimous Court. She began
by stating, "Our case law establishes that, absent express authorization
by Federal statute or treaty, Tribal jurisdiction over the conduct of
nonmembers exists only in limited circumstances." After citing
*Oliphant*, she declared that *Montana* "is the pathmarking case
concerning Tribal civil authority over nonmembers." *Montana* described
"a general rule that, absent a different congressional direction, Indian
Tribes lack civil authority over the conduct of nonmembers on non-Indian
land within a reservation, subject to two exceptions: The first
exception relates to nonmembers who enter consensual relationships with
the Tribe or its members; the second concerns activity that directly
affects the Tribe's political integrity, economic security, health or
welfare." The Court concluded that neither exception was present in the
case. There was no consensual relationship. Nor was regulatory or
adjudicatory authority over the State highway accident needed to
preserve the right of reservation Indians to make their own laws.
Therefore, the State forum was the proper place for the driver to pursue
her case.

**[The Twenty-First
Century]{.underline}**[]{#__RefHeading___Toc161206413 .anchor} Some
commentators have noted that *Montana* marked a shift away from a strict
territorial conception of Tribal power, as evident in the recent Supreme
Court decision of *Nevada v. Hicks*, 533 U.S. 353 (2001).[^44]
Respondent Hicks was a member of the Fallon Paiute-Shoshone Tribes who
lived on the reservation. He was suspected of killing protected game
life. On two occasions, State game wardens obtained State court search
warrants. They then obtained Tribal court warrants, and \-- accompanied
by a Tribal police officer \-- searched the respondent's property. The
respondent alleged that during the second search, two mounted sheep
heads (of an unprotected species) were damaged. He brought suit in
Tribal Court against the State officials in their individual capacities,
alleging trespass, abuse of process, and violation of civil rights. The
Tribal Court held that it had jurisdiction over the claims. The State
officials then filed an action in Federal district court seeking a
declaratory judgment that the Tribal Court lacked jurisdiction. The
District Court ruled that the Tribal Court did have jurisdiction. The
Ninth Circuit affirmed, concluding that although the game wardens were
non-Indians, their conduct occurred in the respondent's home, which was
located on Tribe-owned land within the reservation. The Supreme Court
reversed.

Justice Scalia, writing for the majority, characterized the issue as
that of determining whether the Tribal Court had jurisdiction to
adjudicate the alleged tortious conduct of State wardens executing a
search warrant for evidence of an off-reservation crime. Citing
*Strate*, the Court noted that the Tribe's adjudicative jurisdiction
over a nonmember cannot exceed its legislative jurisdiction. The Court,
therefore, first examined whether the Tribe -- either as an exercise of
its inherent sovereignty, or under grant of Federal authority -- could
regulate State wardens executing a search warrant for evidence of an
off-reservation crime. The Court acknowledged that the non-Indian
ownership status of the land was central to the analysis in both
*Montana* and *Strate*. However, the majority concluded that the general
rule of *Montana* applied to both Indian and non-Indian land: "The
ownership status of land, in other words, is only one factor to consider
in determining whether regulation of the activities of nonmembers is
'necessary to protect Tribal self-government or to control internal
relations.'" The Court noted that sometimes land ownership would be a
dispositive factor. In fact, in prior Supreme Court decisions, the fact
that the cause of action arose on land not owned by the tribe had been
virtually conclusive of the lack of Tribal civil jurisdiction. However,
"the existence of Tribal ownership is not alone enough to support
regulatory jurisdiction over nonmembers."

The Court then characterized the issue in the present case as that of
determining whether regulatory jurisdiction over State officers was
necessary to protect Tribal self-government or to control internal
relations. It concluded that it was not. The Court noted that the
Indians' right to make their own laws did not exclude all State
regulatory authority on the reservation: "Though Tribes are often
referred to as 'sovereign' entities, it was 'long ago' that 'The Court
departed from Chief Justice Marshall's view that 'the laws of \[a
State\] can have no force' within reservation boundaries. *Worcester v.
Georgia*, 6 Pet 515, 561 (1832)" \[citing *White Mountain Apache Tribe
v. Backer*, 448 U.S. 136, 141 (1980)\]. The Court concluded that Tribal
authority to regulate State officers in executing process related to the
violation, off reservation, of State laws was not essential to Tribal
self-government or internal relations, and that the State's interest in
execution of process was considerable.

In a concurring opinion, Justice Souter, joined by Justices Kennedy and
Thomas, opined that the principal determination of jurisdiction over
civil matters on a reservation should be the membership status of the
nonconsenting party, not the status of the underlying real estate,[^45]
i.e., whether the action arose in Indian country: "The path marked best
is the rule that, at least as a presumptive matter, Tribal courts lack
civil jurisdiction over nonmembers."[^46] Justice O'Connor wrote a
separate concurring opinion, which Justice Scalia noted, "is in large
part a dissent from the views expressed in this opinion." Her opinion,
joined by Justices Stevens and Breyer, characterized the majority's
"sweeping opinion" as one that, "without cause, undermines the authority
of Tribes to make their own laws and be ruled by them" in a case that
involved Tribal power to regulate the activities of nonmembers on land
owned and controlled by the Tribe.

Another opinion, *United States v. Lara,*[^47] interpreting the
"*Duro*-fix" amendment to the Civil Rights Act of 1968, is a must-read
on the issue of inherent Tribal sovereignty versus delegated Federal
authority, as well as on the Constitutional authority given to Congress
to legislate regarding Tribal sovereignty. In a 7-2 decision, there were
three concurring opinions. As noted by Justice Thomas in his concurring
opinion, "As this case should make clear, the time has come to reexamine
the premises and logic of our Tribal sovereignty cases.[^48] Federal
Indian policy is, to say the least, schizophrenic. And this confusion
continues to infuse Federal Indian law and our cases."[^49]

**CHAPTER TWO**

# Table of Statutes and Authorities

######## Statutes and Regulations

Balanced Budget Act of 1997, P.L. No. 105-33 (1997)

Full Faith and Credit for Child Support Orders Act, P.L. No. 103-383
(1994), codified at 28 U.S.C. § 1738B

General Allotment Act, 24 Stat. 388, ch. 119, codified at 25 U.S.C. §
331

General Crimes Act, codified at 18 U.S.C. § 1152

Indian Child Welfare Act of 1978, P.L. No. 95-608 (1978)

Indian Civil Rights Act, P.L. No. 90-284, 82 Stat. 77 (1968), codified
at 25 U.S.C. §§ 1301 -- 41

Indian Financing Act of 1974, P.L. No. 93-262, 88 Stat. 77 (1974)

Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (1934),
codified as amended at 25 U.S.C. §§ 461-479

Indian Self-Determination and Education Assistance Act of 1975, P.L. No.
93-638 (1975)

Major Crimes Act, ch. 341, § 9, 23 Stat. 362, 385, codified at 18 U.S.C.
§ 1153

Personal Responsibility and Work Opportunity Reconciliation Act, P.L.
No. 104-193 (1996)

P.L. No. 99-570, § 4217, 100 Stat. 3207-146 (codified at 25 U.S.C. §
1302(7))

Public Law 280 (enacted in 18 U.S.C., 25 U.S.C., and 28 U.S.C.)

P.L. No. 104-193, 110 Stat. 2166 at 2256 (codified as amended at 42
U.S.C. § 654(33))

18 U.S.C. § 1152

25 U.S.C. § 331

25 U.S.C. §§ 461-479

25 U.S.C. § 1301(2)

25 U.S.C. §§ 1301 -- 41

25 U.S.C. § 1302(7)

28 U.S.C. § 1738B

42 U.S.C. § 654(33)

42 U.S.C. § 655(f)

**[Case Law]{.underline}**

*Cherokee Nation v. Georgia*, 30 U.S. (5 Pet.) 1 (1831)

*Duro v. Reina*, 495 U.S. 676 (1990)

*Ex Parte Crow Dog*, 109 U.S. 556 (1883)

*Fisher v. District Court*, 424 U.S. 382 (1976)

*Iowa Mutual Ins. Co. v. LaPlante*, 480 U.S. 9 (1987)

*Johnson v. McIntosh*, 21 U.S. (8 Wheat) 543, 574 (1823)

*Merrion v. Jicarilla Apache Tribe*, 455 U.S. 130 (1982)

*Montana v. United States*, 450 U.S. 544 (1981)

*National Farmers Union Ins. Cos. v. Crow Tribe*, 471 U.S. 845 (1985)

*Nevada v. Hicks*, 533 U.S. 353 (2001)

*Oliphant v. Suquamish Indian Tribe*, 435 U.S. 191 (1978)

*Santa Clara Pueblo v. Martinez*, 436 U.S. 49 (1978)

*Strate v. A-1 Contractors*, 520 U.S. 438 (1997)

*United States v. Lara*, 541 U.S. 193 (2004)

*United States* *v. Wheeler*, 435 U.S. 313 (1978)

*White Mountain Apache Tribe v. Bracker*, 448 U.S. 136 (1980)

*Williams v. Lee,* 358 U.S. 217 (1959)

*Worcester v. Georgia*, 31 U.S. (6 Pet.) 515 (1832)

*Wetsit v. Stafne*, 44 F.3d 823 (9^th^ Cir. 1995)

**[Periodicals/Publications]{.underline}**

F. Cohen, Handbook of Federal Indian Law (ed. 1982).

N. Newton *et al*., eds., Cohen's Handbook of Federal Indian Law (2005
ed.).

Dept. of Justice, Criminal Resource Manual, The Major Crimes Act -- 18
U.S.C.§ 1153 (Oct. 1997).

Gould, *The Congressional Response to Duro v. Reina: Compromising
Sovereignty and the Constitution*, 28 U.C. Davis L. Rev. 53 (1995).

Gould, *Tough Love for Tribes: Rethinking Sovereignty After Atkinson and
Hicks*, 37 New Eng. L. Rev. 669 (2003).

North Dakota Department of Human Services, Journey to Understanding: An
Introduction to North Dakota Tribes (2003) (written under contract by
the Native American Training Institute).

Stoner and Orona, *Full Faith and Credit, Comity, or Federal Mandate? A
Path that Leads to Recognition and Enforcement of Tribal Court Orders,
Tribal Protection Orders, and Tribal Child Custody Orders,* 34 N.M.L.
Rev. 381 (2004).

Walch, *Terminating the Indian Termination Policy*, 35 Stan. L. Rev.
1181 (1983).

**\[page deliberately left blank\]**

**CHAPTER THREE**[]{#__RefHeading___Toc161206415 .anchor}

**AN OVERVIEW OF TRIBAL COURT JURISDICTION**

# Tribal Courts

According to the Bureau of Indian Affairs, there are now 562 Federally
recognized Tribal governments within the United States.[^50] Among the
Federally recognized Indian Tribes and Alaska Native villages, there are
approximately 275 Tribal courts and 23 CFR courts.[^51]

Tribal courts have similar authority as State courts. They take sworn
testimony and provide parties procedural rights.[^52] However, there is
greater diversity among Tribal courts than among State courts. Some
Tribes operate both trial and appellate courts, and have detailed rules
governing appellate review. For example, the Navajo Nation, which has
the largest and most populous reservation in the United States, has a
long-standing Tribal court system. It consists of seven district courts,
including a children's court and a peacemaker court, within each
district, as well as an appellate court, the Navajo Supreme Court.[^53]
In other Tribes, the Tribal council provides appellate review, while in
others there is no appellate review at all. Among various Northwest and
Plains Tribes, there are inter-Tribal courts of appeals.[^54]

Tribal legal systems often include forums that focus on dispute
resolution. "One example is the family forum for domestic relations
disputes among the Pueblo communities where intra-familial matters are
resolved through family gatherings or talking circles facilitated by
family elders. . . . Another noted example is the Navajo Peacemaker
Court, created in 1982 as a way of fostering and encouraging use of
traditional Navajo justice methods. . . . It employs non-adversary
methods of community participation in achieving conflict resolution
through, for example, 'talking out,' apology, and restitution. The
Navajos provide a peacemaker forum for each of the Nation's judicial
districts to handle a wide variety of cases, including criminal actions,
dissolution of marriage, child custody, and property disputes. . . . As
one Tribal judge put it, '\[t\]he Peacemaker Court, which emphasizes the
involvement of family and friends in dispute resolution, promotes Tribal
traditions and community harmony for a Tribe that is reconstituting
after a century of dislocation.'"[^55]

Eligibility requirements to be a Tribal judge vary among Tribes. Some
Tribes require their judges to be members who are fluent in the Tribe's
language while others allow non-Indians to serve as Tribal court judges.
State-licensed attorneys are not automatically admitted to practice in
Tribal courts. Many Tribes have a requirement that the attorney be
admitted to practice in Tribal court, according to local Tribal
ordinances.

# Tribal Law

As a result of the Indian Reorganization Act, most Tribes now have
written laws and constitutions. Although early laws often copied BIA
codes, current Tribal codes address such diverse issues as divorce,
custody and support, adoption, and health.

Tribal law includes treaties, the Tribal constitution, codes, decisional
law, and custom (seldom codified).[^56] The Federal government has
recognized that many Tribal customs and traditions have the force and
effect of law: "We have determined that such Tribal customs are
equivalent to 'common law' as described by William Blackstone: '\[t\]he
*lex nonscripta*, or unwritten law, includes not only general customs,
or the common law properly so called; but also the particular customs of
certain parts of the kingdom; and likewise those particular laws, that
are by custom observed only in certain courts and jurisdictions'
(Blackstone, 1 Commentaries on the Law of England 62)."[^57]

Excellent collections of Tribal codes exist at the University of
Washington, and the Native American Rights Fund in Boulder, Colorado.
There are also several on-line resources for accessing selected Tribal
codes. Such resources are listed in Appendix A.

**[Applicable Law in Civil
Cases]{.underline}**[]{#__RefHeading___Toc161206418 .anchor} Many Tribal
codes state that in all civil matters, the Tribal court shall apply the
ordinances, customs, and usages of the Tribe not prohibited by the laws
of the United States. In any matter not covered by Tribal ordinance,
custom, or usage, such codes provide that the Tribal court may use
relevant Federal or State laws as a guide. An example is found in the
Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indian Tribal
Code:

> TITLE 2 - RULES OF PROCEDURE
>
> CHAPTER 2-2 CIVIL ACTIONS, LIMITATIONS AND LIABILITY
>
> 2-2-4 [Laws Applicable in Civil Actions]{.underline}
>
> \(a\) In all civil actions, the Tribal Court shall first apply the
> applicable laws, Ordinances, customs and usages of the Confederated
> Tribes of Coos, Lower Umpqua, and Siuslaw Indians (Tribes) and then
> shall apply any applicable laws of the United States and authorized
> regulations of the Department of the Interior. Where doubt arises as
> to customs and usages of the Tribes, the Tribal Court may request the
> advice of the appropriate committee which is recognized in the
> community as being familiar with such customs and usages. Any matter
> not covered by Ordinances, customs and usages of the Tribes or by
> applicable Federal laws and regulations may be decided by the Court
> according to the laws of the State of Oregon.

Regulations governing Courts of Indian Offenses provide that in all
civil cases the Tribal court shall apply any applicable laws of the
United States, any authorized regulation of the Interior Department, and
any ordinance or custom of the Tribe not prohibited by such Federal
laws. Where there is doubt about custom or usage of the Tribe, the court
may request the advice of counselors familiar with these customs and
usages. Any matters not addressed by such laws, regulations, ordinances
or custom must be decided by the Court of Indian Offenses according to
the law of the State in which the disputed matter lies.[^58]

# Tribal Territorial Jurisdiction

Indians that commit offenses outside reservation boundaries, or outside
trust land that was within the original borders of a now diminished
reservation, are usually subject to State laws.[^59] Tribal courts
usually only have jurisdiction over causes of action that arise in
Indian country. Domestic law cases are an exception to that general rule
because a Tribal court may have jurisdiction over a paternity action
even if conception occurred off the reservation.

# Tribal Subject Matter Jurisdiction

Subject matter jurisdiction is the authority of a tribunal to hear a
particular case. For example, a probate court typically has subject
matter jurisdiction to hear cases related to estate matters but not to
divorce. Many Tribal courts are courts of general jurisdiction (e.g.,
jurisdiction over matters ranging over a number of subject areas).

In order to understand the extent of Tribal subject matter jurisdiction
over civil and criminal matters, it is important to understand these
three principles:

\(1\) an Indian Tribe possesses, in the first instance, all the inherent
powers of any sovereign State;

\(2\) a Tribe\'s presence within the territorial boundaries of the
United States subjects the Tribe to Federal legislative power and
precludes the exercise of external powers of sovereignty of the Tribe,
such as its power to enter into treaties with foreign nations, that are
inconsistent with the territorial sovereignty of the United States.
However, the Tribe's presence within the territorial boundaries of the
United States does not by itself affect the internal sovereignty of the
Tribe;

\(3\) inherent Tribal powers are subject to qualification by treaties
and by express legislation of Congress. Absent such qualification, full
powers of internal sovereignty are vested in the Indian Tribes and in
their duly constituted bodies of government.[^60]

# Federal Limitation on Tribal Jurisdiction

**[Overview]{.underline}**[]{#__RefHeading___Toc161206422 .anchor}
Through several enactments, Congress has asserted the Federal
government's jurisdiction over criminal matters in Indian country,[^61]
thereby lessening the control of Tribal courts. In addition, in some
States and for some individual Tribes, Congress has limited Tribal
control by authorizing State criminal jurisdiction in Indian country.
Finally, the United States Supreme Court has prevented Indian nations
from exercising criminal jurisdiction over non-Indians and non-member
Indians by determining that such jurisdiction is no longer within the
Tribes' inherent authority.[^62]

Congress has not enacted any general statute authorizing Federal courts
to supplant Tribal courts in hearing civil matters arising in Indian
country. However, Indian country cases will sometimes be within
concurrent Federal jurisdiction under the general Federal question
statute[^63] or through the statute authorizing Federal courts to hear
suits between citizens of different States (referred to as "diversity
jurisdiction").[^64] Thus, for example, Federal courts sometimes hear
civil actions challenging the jurisdiction of Tribal courts to hear
certain disputes involving non-Tribal members that arise in Indian
country. In such cases, however, the Supreme Court has determined that
Federal courts should require litigants to first exhaust their remedies
in Tribal court.[^65] In addition, in some States and for some
individual Tribes, Congress has limited Tribal control by authorizing
State jurisdiction over civil causes of actions between Indians or to
which Indians are parties, which arise in those areas of listed Indian
country.[^66] This jurisdiction is limited to private causes of action,
and does not encompass State regulation.

**[Federal Indian Country Criminal
Laws]{.underline}**[]{#__RefHeading___Toc161206423 .anchor} The first
major Federal act affecting Tribal jurisdiction over criminal activity
was the General Crimes Act,[^67] enacted in 1817. It gave the Federal
government jurisdiction over crimes, committed by Indians against
non-Indians, within Indian country, so long as the Indian involved had
not been punished under the law of the Tribe. Because of the exception
for cases in which the Indian defendant has already been punished under
Tribal law, there is the understanding that the Federal jurisdiction
under the General Crimes Act is concurrent with Tribal jurisdiction.
However, the Federal criminal jurisdiction over crimes committed by
Indians against non-Indians is exclusive of the States. Importantly,
under the General Crimes Act, Indian nations retain exclusive
jurisdiction over crimes committed by one Indian against another. The
General Crimes Act also gave the Federal government exclusive
jurisdiction over crimes committed by non-Indians against Indians.
Wherever the Federal government has jurisdiction under the General
Crimes Act, offenses are defined by Federal criminal law, or are
borrowed from State law through the Assimilative Crimes Act.[^68]

The next significant Federal act was the Major Crimes Act of 1885.[^69]
Enacted in response to the Supreme Court's decision in *Ex parte Crow
Dog,*[^70] it originally granted Federal jurisdiction, exclusive of the
States, over seven crimes committed by an Indian within Indian country.
The number has steadily increased to include: "murder, manslaughter,
kidnapping, maiming, a felony under chapter 109A \[aggravated sexual
abuse, sexual abuse, sexual abuse of a minor or ward, abusive sexual
contact\], incest, assault with a dangerous weapon, assault resulting in
serious bodily injury, arson, burglary, robbery and a felony under
section 661 of Title 18 \[within special maritime and territorial
jurisdiction of the United States, the taking away with the intent to
steal the personal property of another\]."[^71] It is unclear whether
jurisdiction over these major crimes is exclusive with Federal courts or
whether Tribal courts have concurrent jurisdiction.[^72] As a practical
matter, the severe limitations on Tribal criminal punishments introduced
by the Indian Civil Rights Act of 1986[^73] make Tribal prosecution of
major crimes relatively rare.

#### 

**[Other Federal
Legislation]{.underline}**[]{#__RefHeading___Toc161206424 .anchor} The
Indian Civil Rights Act, mentioned above, initially limited Tribal court
criminal punishment to six months and a \$500 fine. These limits were
later raised to one year and a \$5000 fine.[^74]

**[Public Law 280]{.underline}**[]{#__RefHeading___Toc161206425 .anchor}
In 1953, at the height of the termination and assimilation era,[^75]
Congress passed Public Law 280, which significantly affected Tribal
jurisdiction by introducing State criminal authority into Indian
country.[^76] Historically, State courts did not have jurisdiction over
crimes occurring in Indian country that involved Indians and
non-Indians. Jurisdiction was limited to the Tribes or Federal
government.[^77] Public Law 280[^78] initially provided for the
mandatory transfer to five States[^79] of jurisdiction over criminal
offenses committed by or against Indians in the area of Indian country
listed opposite the named States or territory.[^80] It also gave those
States jurisdiction over civil causes of actions between Indians or to
which Indians were parties, which arose in those areas of listed Indian
country.[^81] In 1958 Congress added Alaska as a sixth mandatory
State.[^82] There was no requirement that the Tribes consent to such
transfer of jurisdiction to the listed States. In *Washington v.
Confederated Bands and Tribes of the Yakima Indian Nation*, 439 U.S. 463
(1979), the Supreme Court declined to answer whether Public Law 280
conferred exclusive or concurrent jurisdiction on States. However, the
consensus of lower Federal courts, many State courts, and the
Solicitor's Office within the Department of the Interior is that Indian
nations retain concurrent jurisdiction under Public Law 280.[^83] A
major consequence of Public Law 280 is that Indian nations lose
exclusive jurisdiction over non-major offenses committed by one Indian
against another Indian.

Other States not listed among the mandatory States had the option of
assuming Public Law 280 jurisdiction. Congress granted permission for
such States to assume civil or criminal jurisdiction "at such time and
in such manner" as the people of the State by affirmative legislative
action, should decide to assume.[^84] If such a State had a constitution
or statutes disclaiming jurisdiction in Indian country, Public Law 280
authorized the State to amend those laws, if necessary, in order to
remove any legal impediment to the assumption of civil or criminal
jurisdiction.[^85]

An overall goal of Congress, in numerous pieces of legislation
introduced during the session in which Public Law 280 was introduced,
was "withdrawal of Federal responsibility for Indian affairs wherever
practical, and . . . termination of the subjection of Indians to Federal
laws applicable to Indians as such."[^86] The legislative history of
Public Law 280 suggests that Congress's main goal was to address the
lack of law enforcement on Indian reservations.[^87] The Report of the
House Committee on Interior and Insular Affairs, which was subsequently
incorporated into the Senate Report, stated: "As a practical matter, the
enforcement of law and order among the Indians in the Indian country has
been left largely to the Indian groups themselves. In many States,
Tribes are not adequately organized to perform that function;
consequently there has been created a hiatus in law-enforcement
authority that could best be remedied by conferring criminal
jurisdiction on States indicating an ability and willingness to accept
such responsibility."[^88] The Tribes exempted from the State assumption
of jurisdiction were Tribes that had legal systems and organizations
perceived as functioning in a "satisfactory manner."[^89]

According to the Supreme Court in *Washington v. Yakima*, the
jurisdictional bill also reflected Congressional concern over "the
financial burdens of continued Federal jurisdictional responsibilities
on Indian lands." There is less background as to why civil jurisdiction
was also transferred to States. However, as noted by the Court in
*Washington v. Yakima*, the legislation was "without question reflective
of the general assimilationist policy followed by Congress from the
early 1950's through the late 1960's. \[omitting citations\] The failure
of Congress to write a Tribal-consent provision in the transfer
provision applicable to option States as well as its failure to consult
with the Tribes during the final deliberations on Pub. L. 280 provide
ample evidence of this." 439 US.463, 490.

By 1958, as a result of amendments to Public Law 280 and implementing
State legislation, 16 States had acquired Public Law 280
jurisdiction.[^90] However, said jurisdiction in most of these States
was limited to (1) less than all of the Indian reservations in the
State, (2) less than all of the geographic areas within an Indian
reservation, or (3) less than all subject matters of the law.

In 1968, Congress passed the Indian Civil Rights Act (ICRA), which
limited the extension of Public Law 280 jurisdiction.[^91] No State can
now acquire Public Law 280 jurisdiction over Indian country unless the
Tribe consents by a majority vote of the adult Indians voting at a
special election.[^92] The amendments also provide explicitly for
partial assumption of jurisdiction. It is therefore possible for a State
to have Public Law 280 jurisdiction but not with every Tribe located in
the State or not over every subject area. The ICRA also authorized the
United States to accept a \"retrocession\" or return of jurisdiction,
full or partial, previously acquired by a State under Public Law
280,[^93] but only at the request of the State. Tribes could not insist
upon retrocession. Several States, such as Nebraska, Washington,
Wisconsin, and Minnesota, have retroceded their Public Law 280
jurisdiction over various Tribes.

The chart[^94] below summarizes the States that currently have some form
of civil and/or criminal jurisdiction under Public Law 280:

  ----------------------------------- -----------------------------------
  **State**                           **Extent of Jurisdiction**

  Alaska                              All Indian country within the
                                      State[^95]

  California                          All Indian country within the State

  Florida                             All Indian country within the State

  Idaho                               All Indian country within the
                                      State, limited to the following
                                      subject matters: compulsory school
                                      attendance; juvenile delinquency
                                      and youth rehabilitation;
                                      dependent, neglected, and abused
                                      children; mental illness; domestic
                                      relations; and operation of motor
                                      vehicles on public roads

  Iowa                                Only over the Sac and Fox Indian
                                      community in Tama County, limited
                                      to civil and some criminal
                                      jurisdiction

  Minnesota                           All Indian country within the
                                      State, except the Red Lake and the
                                      Nett Lake reservations[^96]

  Montana                             Only over felonies on the Salish
                                      and Kootenai reservation.[^97]

  Nebraska                            All Indian country within the
                                      State, except the Omaha and
                                      Winnebago reservations.

  Oregon                              All Indian country within the
                                      State, except the Burns Paiute and
                                      Warm Springs reservations. With
                                      regard to the Umatilla Reservation,
                                      jurisdiction is limited to civil
                                      jurisdiction.[^98]

  Washington                          Only fee patent (deeded) land
                                      within Indian country. Jurisdiction
                                      on trust land is limited to the
                                      following subjects, unless the
                                      Tribe consents to full State
                                      jurisdiction:[^99] compulsory
                                      school attendance; public
                                      assistance; domestic relations;
                                      mental illness; juvenile
                                      delinquency; adoptions; dependent
                                      children; and operation of motor
                                      vehicles on public roads.

  Wisconsin                           All Indian country within the
                                      State, except the Menominee
                                      reservation[^100]
  ----------------------------------- -----------------------------------

There have been several Supreme Court decisions interpreting Public Law
280.[^101] In *Washington v. Yakima*, the Court held that Public Law 280
authorized a State to assert only partial jurisdiction within a selected
area of an Indian reservation; in the case, the State of Washington had
enacted legislation obligating the State to assume civil and criminal
jurisdiction over Indians and Indian territory within the State, but --
with the exception of eight subject matter areas, which included
domestic relations -- not to extend such jurisdiction over Indians on
trust or restricted lands without the request of the affected Indian
Tribe.[^102] In *Bryan v. Itasca County*, the Court interpreted Public
Law 280 to grant States jurisdiction over criminal matters and private
civil litigation involving reservation Indians, but not to grant civil
regulatory authority such as a State personal property tax within the
reservation. Discussing the holding in *Bryan*, the Court in *California
v. Cabazon Band* stated that "when a State seeks to enforce a law within
an Indian reservation under the authority of Pub. L. 280, it must be
determined whether the law is criminal in nature, and thus fully
applicable to the reservation, or civil in nature, and applicable only
as it may be relevant to private civil litigation in State court." In
*California v. Cabazon Band*, the Court set forth a test for
distinguishing between criminal and civil laws: "\[I\]f the intent of a
State law is generally to prohibit certain conduct, it falls within Pub.
L. 280's grant of criminal jurisdiction, but if the State law generally
permits the conduct at issue, subject to regulation, it must be
classified as civil/regulatory and Pub. L. 280 does not authorize its
enforcement on an Indian Reservation. The shorthand test is whether the
conduct at issue violates the State's public policy." Applying such a
test to the facts of the case, the Court concluded that Public Law 280's
grant of criminal jurisdiction did not include a regulatory statute such
as California's statute governing the operation of bingo games.[^103]

# Tribal, Federal, or State Jurisdiction in Criminal Actions

As noted earlier, the General Crimes Act gives Federal courts
jurisdiction over crimes committed by Indians against non-Indians or by
non-Indians against Indians in Indian country. The Major Crimes Act is
Federal legislation that gives Federal courts jurisdiction over certain
serious crimes committed by Indians in Indian country, whether the
victim is Indian or non-Indian.[^104] It is unclear whether the Federal
government's jurisdiction in such cases is exclusive or concurrent with
the Tribe.[^105]

Public Law 280 gives certain State courts jurisdiction over criminal
offenses involving Indians in Indian country. In the mandatory Public
Law 280 States, Federal jurisdiction under the General Crimes Act and
Major Crimes Act is eliminated by statute.[^106] In the optional Public
Law 280 States, the impact on Federal jurisdiction is less certain, with
courts differing on whether the Federal government retains criminal
jurisdiction.[^107]

Both in the non-Public Law 280 jurisdictions and those jurisdictions
affected by Public Law 280, concurrent Tribal criminal jurisdiction
likely exists. From the perspective of Tribal criminal jurisdiction, the
main difference between these two arrangements is that in the non-Public
Law 280 situation, Tribes have *exclusive* jurisdiction over non-major
crimes committed by one Indian against another. In the Public Law 280
situation, Tribes share jurisdiction over such crimes with the States,
at least in mandatory States and in optional States that have assumed
full jurisdiction. If a State has assumed only partial jurisdiction
under Public Law 280, then the Federal government and the Tribe will
share jurisdiction over remaining matters.

The Supreme Court has also had occasion to review the criminal
jurisdiction of Tribal courts in *Oliphant v. Suquamish Indian Tribe*,
435 U.S. 191 (1978), *United States v. Wheeler*, 435 U.S. 313 (1978),
and *Duro v. Reina*, 495 U.S. 676 (1990). Relying not on specific
Federal legislation but on the dependent status of Indian Tribes in
relation to the sovereignty of the United States, the Court in these
cases held that Indian Tribes have no criminal jurisdiction over
non-Indians or nonmember Indians for offenses committed in Indian
country. Tribes do have Tribal jurisdiction over Indians who have
committed crimes on the reservation.

Indian Tribal leaders viewed *Duro v. Reina* (exempting nonmember
Indians from criminal misdemeanor laws of local Tribal governments) as a
major assault on the ability of Tribal governments to administer justice
in Indian country.[^108] In reaction to the decision, Congress amended
the Indian Civil Rights Act to define "powers of self-government" to
include "the *inherent* power of Indian Tribes, hereby recognized and
affirmed, to exercise criminal jurisdiction over *all* Indians"[^109]
\[emphasis added\]. The Supreme Court examined the so-called "*Duro*
fix" in the case of *United States v. Lara*, 541 U.S. 193 (2004). Lara,
a nonmember Indian, was convicted in Tribal court of a misdemeanor
offense of violence to a policeman. He was later charged with the
Federal crime of assaulting a Federal officer. Lara claimed that the
Federal prosecution was barred by the Double Jeopardy Clause. The
Supreme Court ruled that it was not. In reaching that conclusion, the
Court concluded that the Congressional amendment to the Indian Civil
Rights Act had eliminated restrictions that the political branches had
placed, over time, on the exercise of a tribe's inherent legal authority
over nonmember Indians: "That new statute, in permitting a tribe to
bring certain Tribal prosecutions against nonmember Indians, does not
purport to delegate the Federal Government's own *Federal* power.
Rather, it enlarges the *tribes'* own 'powers of
self-government.'"[^110] Therefore, since the Tribe had been acting as a
separate sovereign in its prosecution of Lara, the subsequent Federal
prosecution was not barred by the Double Jeopardy Clause.

One can summarize jurisdiction over criminal offenses according to the
following chart. Wherever Federal and State court jurisdiction is not
exclusive, Tribal jurisdiction is concurrent.

+-------------+-------------+-------------+-------------+-------------+
|             | *           | **Type of   | **Status of | **Status of |
|             | *Location** | Offense**   | Defendant** | Victim**    |
+-------------+-------------+-------------+-------------+-------------+
| **Exclusive | Indian      | Felony not  | Indian      | Indian or   |
| Tribal      | Country in  | listed in   | (either     | non-Indian  |
| Court**     | State       | Major       | member or   |             |
|             | without PL  | Crimes Act  | nonmember)  |             |
|             | 280         | or          |             |             |
|             | criminal    | Misdemeanor |             |             |
|             | j           |             |             |             |
|             | urisdiction |             |             |             |
+-------------+-------------+-------------+-------------+-------------+
| **Exclusive | Indian      | Felony      | Non-Indian  | Non-Indian  |
| State       | Country in  |             |             |             |
| Court**     | State       |             |             |             |
|             | without PL  |             |             |             |
|             | 280         |             |             |             |
|             | criminal    |             |             |             |
|             | j           |             |             |             |
|             | urisdiction |             |             |             |
+-------------+-------------+-------------+-------------+-------------+
| **Exclusive | Outside     | Felony or   | Indian or   | Indian or   |
| State       | Indian      | M           | non-Indian  | non-Indian  |
| Court**     | Country     | isdemeanor, |             |             |
|             |             | except in   |             |             |
|             |             | which       |             |             |
|             |             | Federal law |             |             |
|             |             | makes crime |             |             |
|             |             | one of      |             |             |
|             |             | national    |             |             |
|             |             | ap          |             |             |
|             |             | plicability |             |             |
+-------------+-------------+-------------+-------------+-------------+
| **Exclusive | Indian      | Felony or   | Non-Indian  | Indian or   |
| State       | Country in  | Misdemeanor |             | non-Indian  |
| Court**     | State with  |             |             |             |
|             | complete    | (no Major   |             |             |
|             | mandatory   | Crime       |             |             |
|             | PL 280      | exception)  |             |             |
|             | criminal    |             |             |             |
|             | j           |             |             |             |
|             | urisdiction |             |             |             |
+-------------+-------------+-------------+-------------+-------------+
| **Federal   | Indian      | Major       | Indian      | Indian or   |
| Court**     | Country in  | Crime\*     |             | non-Indian  |
|             | State       |             | Indian      |             |
|             | without     | Felonies    |             | Non-Indian  |
|             | complete PL | and         | Non-Indian  |             |
|             | 280         | M           |             | Indian      |
|             | criminal    | isdemeanors |             |             |
|             | j           | in which    |             |             |
|             | urisdiction | Indian has  |             |             |
|             |             | not been    |             |             |
|             |             | punished    |             |             |
|             |             | under       |             |             |
|             |             | Tribal      |             |             |
|             |             | law\*\*     |             |             |
|             |             |             |             |             |
|             |             | Felonies    |             |             |
|             |             | and         |             |             |
|             |             | Misdeme     |             |             |
|             |             | anors\*\*\* |             |             |
+-------------+-------------+-------------+-------------+-------------+

\*Unclear whether jurisdiction over Major Crimes is exclusive or
concurrent with Tribal court jurisdiction; jurisdiction is exclusive of
State courts.

\*\*Jurisdiction is concurrent with Tribal courts, but exclusive of
State courts.

\*\*\*Jurisdiction is exclusive of Tribal and State courts.

Sometimes Federal crimes relating to Indian country are defined outside
the framework of the General Crimes Act, the Major Crimes Act, and
Public Law 280. The jurisdictional analysis for such offenses is
entirely different, because the limitations and exceptions in the
General Crimes Act and Major Crimes Act will not apply, and Public Law
280 does not eliminate Federal criminal jurisdiction under such special
laws. Thus, for example, nonsupport is a Federal offense under some
circumstances, and includes a failure to meet a support obligation
established by a Tribal court. This crime is punishable under Federal
law regardless of whether the support obligation was established in a
Public Law 280 State or a non-Public Law 280 State.

Tribes may also have jurisdiction over the crime of nonsupport committed
by Indians in Indian country, assuming their Tribal code sanctions such
an offense.[^111] In complete Public Law 280 jurisdictions, where the
Tribal code establishes a criminal offense for nonsupport, the State
will have concurrent criminal jurisdiction over a criminal nonsupport
offense committed by an Indian in Indian country. When the offense is
committed by a non-Indian in Indian country, only the State or the
Federal government has subject matter jurisdiction to prosecute the
defendant for criminal nonsupport.[^112]

# Tribal or State Jurisdiction in Civil Actions

The United States Supreme Court has broadly affirmed Tribal civil
jurisdiction within Indian country.[^113] In non-Public Law 280
jurisdictions, a Tribe has exclusive jurisdiction over civil causes of
action against member Indians that arise in Indian country: "Tribes have
the power to make their own substantive laws in internal matters, and to
enforce that law in their own forums."[^114] When the suit is brought by
an Indian against a non-Indian, and the claim arises on Indian land in
Indian country, jurisdiction over civil causes of action is typically
concurrent or shared by Tribal and State courts.[^115] A State normally
has exclusive jurisdiction over civil causes of action that arise
outside Indian country and involve off-reservation residents, Indian or
non-Indian.[^116] In non-Public Law 280 jurisdictions, the issue of
Tribal versus State jurisdiction typically arises in cases where the
cause of action arose on non-Indian fee land or a State right-of-way in
Indian country, and the defendant is a non-Indian. It also often arises
in cases where the cause of action arose off the reservation, but one of
the parties is an Indian living on the reservation. When jurisdiction is
at issue, the practitioner must look to legislation and case law for
guidance.

In Public Law 280 jurisdictions, the question of State jurisdiction over
civil causes of action in Indian country is simplified. When the claim
is against an Indian respondent, Tribal jurisdiction is often concurrent
or shared with State jurisdiction. A mandatory Public Law 280 State has
jurisdiction over "civil causes of action between Indians or to which
Indians are parties which arise in the areas of Indian country listed
opposite the name of the State to the same extent that such State has
jurisdiction over other civil causes of action, and those civil laws of
such State that are of general application to private persons or private
property shall have the same force and effect within such Indian country
as they have elsewhere within the State."[^117] An optional Public Law
280 State may also have civil jurisdiction,[^118] but it may be partial
(i.e., only certain specified subject areas or jurisdiction over a
limited part of Indian country). Therefore, even if the case involves
two member Indians, a State with full Public Law 280 civil jurisdiction
will generally have authority to adjudicate the matter. The Supreme
Court has declined to rule on whether Public Law 280 jurisdiction is
exclusive or concurrent with Tribal jurisdiction.[^119] However, other
Federal and State courts have held that Tribes have concurrent
jurisdiction.[^120]

A challenge to jurisdiction arises when one of the parties believes that
the forum selected by the petitioner lacks subject matter jurisdiction,
and that the action should be heard by a different forum. When a
petitioner files an action against an Indian respondent in State court
rather than Tribal court, and the Indian respondent argues that the
State court lacks jurisdiction, the Supreme Court decision that
historically has been most relevant to the issue of State assertion of
jurisdiction is *Williams v. Lee*, 358 U.S. 217 (1959). In *Williams*, a
non-Indian had brought suit in State court against a Navajo Indian for a
debt arising out of a transaction that took place on the Navajo
Reservation. The Arizona Supreme Court had upheld the exercise of State
court jurisdiction. In reversing, the Supreme Court enunciated the
following rule: "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."
[^121]

The test was rephrased as a preemption and infringement analysis in
*White Mountain Apache Tribe v. Bracker*.[^122] Under the preemption
test, the question is whether the exercise of State authority is
pre-empted by Federal law. Under the infringement test, the question is
whether the State action will "infringe on the right of reservation
Indians to make their own laws and be ruled by them." Areas that the
Supreme Court has identified as essential self-government matters
include determination of Tribal membership, regulation of domestic
relations among members, and rules of inheritance for members.[^123] In
conducting an infringement analysis, State court decisions tend to
examine whether one or both parties are enrolled members of an Indian
tribe, whether the cause of action arose on or off the
reservation,[^124] and what are the Tribal and State interests at stake.

When a petitioner files an action against a non-Indian or nonmember
respondent in Tribal court rather than State court, and the non-Indian
respondent argues that the Tribal court lacks jurisdiction, the Supreme
Court decision that is most relevant on the issue of Tribal civil
jurisdiction is *Montana v. United States*.[^125] As noted earlier,
*Montana* addressed a Tribal court's exercise of civil subject matter
jurisdiction over a non-member of the Tribe on non-Indian fee land.
While noting a Tribe's inherent sovereign power over its members, the
Supreme Court also pointed out the "general proposition that the
inherent sovereign powers of an Indian tribe do not extend to the
activities of nonmembers of the tribe." If the action involves a
nonmember or a non-Indian, the question is whether "the exercise of
Tribal power is necessary to protect Tribal self-government or to
control internal relations."[^126] Any exercise of Tribal power beyond
that is "inconsistent with the dependent status of the Tribes, and so
cannot survive without express congressional delegation."[^127] In the
case at hand, the Court concluded that Tribal regulation of hunting and
fishing by nonmembers of a Tribe on lands no longer owned by the Tribe
bore no clear relationship to Tribal self-government or internal
relations. The Court identified two circumstances, or exceptions, where
Tribal civil jurisdiction could exist over non-Indians on non-Indian fee
land: when there is a "consensual relationship" between the non-Indian
or nonmember Indian and the Tribe or a Tribal member, "through
commercial dealings, contracts, leases, or other arrangements"; and when
exercise of jurisdiction is necessary to protect "the political
integrity, the economic security, or the health or welfare of the
Tribe."[^128]

The Court has interpreted these *Montana* exceptions narrowly, out of
concern that the exceptions might swallow the rule.[^129] In *Atkinson
Trading Co., Inc. v. Shirley*, 523 U.S. 645 (2001), the Supreme Court
stated that the consensual relationship exception requires a nexus
between the nonmember's conduct and the Tribe's regulation. The fact
that a nonmember has received or may receive Tribal services, such as
police and fire protection, does not create the necessary connection. It
also stated that the second exception is "only triggered by nonmember
conduct that threatens the Indian tribe; it does not broadly permit the
exercise of civil authority wherever it might be considered "necessary"
to self-government."[^130]

When a State has concurrent jurisdiction with a Tribe, the State court
may nevertheless decline to exercise such jurisdiction if it feels such
an exercise would infringe on a Tribe's self-governance.[^131] Rules
respecting deference to Tribal courts are currently under development
for concurrent Tribal and State jurisdiction, especially in Public Law
280 States.[^132] In the event of concurrent jurisdiction, the case may
be adjudicated by the first tribunal to validly exercise
jurisdiction.[^133]

# State Jurisdiction to Serve Process in Indian Country

If the State court has subject matter jurisdiction over a civil or
criminal action involving an Indian who resides on a reservation,
service of the pleadings or arrest warrant on the Indian must also be
proper. Some States and Tribes have entered into cross-deputizing
agreements to address service of process and service of arrest warrants.
For example, pursuant to the Fort Peck Comprehensive Code of Justice,
Title XII, § 208, a procedure exists to cross-deputize certain Montana
law enforcement officers with authority to detain and arrest Indians on
the Fort Peck Indian Reservation. The procedure requires that the
Montana law enforcement agency submit the name of the officer to the
Tribal Executive Board for a resolution approving that particular
officer.

If there are no such agreements, cases have split on whether State
process may be served on the Indian respondent or defendant while he or
she is on the reservation.[^134] In a case involving action that arose
off the reservation, the Supreme Court addressed the related issue of
State service of a search warrant. In *Nevada v. Hicks*, 533 U.S. 353
(2001), respondent Hicks was a member of the Fallon Paiute-Shoshone
Tribe of western Nevada, who lived on the Tribe's reservation. He was
suspected of having killed, off the reservation, a California bighorn
sheep, which was a gross misdemeanor under Nevada law. Twice, State game
wardens obtained State-court and Tribal-court search warrants. Both
times, in executing the warrants on the home of Hicks, the State
sheriffs were accompanied by Tribal officers. After the second search,
Hicks filed suit in the Tribal Court alleging, in part, that the wardens
had trespassed and abused process. The Tribal Court held that it had
jurisdiction, which was upheld by the Tribal Appeal Court. The
petitioners then sought in Federal District Court a declaratory judgment
that the Tribal Court lacked jurisdiction over the claims. The Federal
court concluded that the fact that Hicks's home was on Tribe-owned
reservation land was sufficient to support Tribal jurisdiction over the
civil claims against nonmembers arising from their activities on that
land.

The Supreme Court reversed. It concluded that the Tribal Court did not
have jurisdiction to adjudicate the wardens' alleged tortious conduct in
executing a search warrant for an off-reservation crime because the
Tribe did not have regulatory authority over the State officers.[^135]
The Court pointed out that the fact that Indians have the right to make
their own laws and be governed by them "does not exclude all State
regulatory authority on the reservation." A State may not be able to
exercise the same degree of regulatory authority within a reservation as
it may do off the reservation. However, using the *Montana*
test*,*[^136] the Court concluded that Tribal authority to regulate
State officers in executing process related to the off-reservation
violation of State laws was not essential to Tribal self-government or
internal relations. Moreover, it concluded, the State's interest in
executing process was considerable, and did not impair the Tribe's
self-government.

Most of the reported State court decisions regarding State service of
process within Indian country pre-date *Nevada v. Hicks*. Courts have
used the *Williams* test to review State service of process on an Indian
residing on a reservation. With regard to the preemption prong, courts
have uniformly held that there is no Federal statute preempting State
service of process. Conclusions regarding whether the State action
infringes on Tribal sovereignty vary.

Montana courts have concluded that State service of process does not
infringe on Tribal sovereignty: "Indian country is not a Federal enclave
off limits to State process servers. Service of process extends to
Indian defendants served within the reservation."[^137] The Wisconsin
Supreme Court has recognized that service of process is an attempt to
apply State law on the reservation.[^138] However, the court also found
that applying State service of process statutes had little if any effect
on Tribal sovereignty. The case involved a juvenile delinquency
proceeding against an enrolled member of the Menominee Indian Tribe for
acts that had occurred off the reservation. The New Mexico Supreme Court
has also upheld State service of process on an Indian while on the
reservation for off-reservation acts.[^139] In contrast, the Arizona
court in *Francisco v. State*, 556 P.2d 1 (Ariz. 1976) held that State
service on an Indian while on the reservation was invalid. *Francisco*
involved a mother and alleged father who were both Papago Indians; the
mother and child had lived in Tucson, Arizona since the child's birth,
and the father lived on the reservation. Action was brought in State
court to establish paternity. The Pima County Deputy Sheriff served the
alleged father while he was on reservation, and the alleged father
subsequently challenged the State court's personal jurisdiction over
him. The Arizona Supreme Court pointed out that Arizona lacked Public
Law 280 jurisdiction. The court concluded, therefore, that the State
could not extend its laws to Indian reservations such that a deputy
sheriff could validly serve an Indian on the reservation.[^140] In
another case, Arizona attempted to accommodate concerns about
interference with Tribal sovereignty by authorizing service of process
within Indian country only when process is served by mail, as in the
case of long-arm jurisdiction over out-of-State defendants.[^141]

When State service is made on a non-Indian on the reservation, the court
is less likely to find interference with Tribal sovereignty. In the
later case of *State v. Zaman*,[^142] the Arizona Court of Appeals
emphasized the distinction between State service on an Indian within the
boundaries of a reservation (not allowed under prior State case law) and
State service on a non-Indian on the reservation. Citing prior U.S.
Supreme Court decisions, it upheld the State service of process on a
non-Indian on the reservation. It also commented that Public Law 280 was
irrelevant because the law was a method whereby a State may assume
jurisdiction over reservation Indians: "Arizona does not need Public Law
280 to extend its laws to non-Indians within the boundaries of a
reservation."[^143]

A comprehensive analysis of service of process in Indian country is
found in Letter Opinion 94-L-245, written by the then Attorney General
of North Dakota. The Attorney General was responding to an inquiry as to
whether a county sheriff could enter the reservation to serve a notice
of levy upon an Indian residing on the reservation. The Letter Opinion
begins by stating that the response assumes that the State court had
jurisdiction over the matter and the parties. Although it also predates
*Nevada v. Hicks*, the Letter Opinion makes the following points, which
are still valid:

1.  On a reservation, State authority over a nonmember Indian or
    non-Indian is more extensive than that over Tribal members.[^144]

```{=html}
<!-- -->
```
1.  Prior to *Nevada v. Hicks*, State courts had split in their
    decisions regarding the service of process by a sheriff upon an
    Indian in Indian country.[^145]

2.  If Tribal law does not allow Tribal authorities to aid a sheriff in
    the service of process, service by the State sheriff is more likely
    to be held valid; the court is less likely to find infringement of
    Tribal sovereignty if the Tribe chose not to exercise its right of
    self-government in this area.[^146]

3.  If State law requires personal service of process, notice should be
    served in cooperation with Tribal authorities.[^147]

4.  State law may provide for a less intrusive form of service of
    process, such as service by mail.

5.  Another way to avoid the jurisdictional problem is to have service
    conducted by Tribal law enforcement officers, assuming State law
    does not restrict service to State officers.[^148]

Service on a defendant will not remedy an invalid exercise of subject
matter jurisdiction. For example, when a State trial court lacks subject
matter or personal jurisdiction over an Indian defendant, service on the
individual while he or she is on the reservation is insufficient to give
the State court jurisdiction over the defendant**.**[^149]

# Tribal Personal Jurisdiction 

**[Bases for Personal
Jurisdiction]{.underline}**[]{#__RefHeading___Toc161206430 .anchor}
Assuming subject matter jurisdiction, Tribal codes typically assert
personal jurisdiction in a civil action over any person who is a member
of the Tribe.[^150] There may be limits to the exercise of civil
jurisdiction over a nonmember Indian or non-Indian. For example, the
Civil and Criminal Law and Order Code of the Hualapai Tribe (Arizona)
provides that the Tribal court:

shall have jurisdiction of all suits wherein the defendant is a member
of the Tribe and between members and non-members which are brought
before the Court, provided that the Tribal court shall not have
jurisdiction over non-Indian defendants in civil matters, unless said
non-Indian shall have submitted himself to said jurisdiction. Submission
of jurisdiction shall be by written stipulation or oral stipulation in
open court or by filing an action in Tribal court against an Indian.

Ch. 2, § 2.1 (1975). The Three Affiliated Tribes of Fort Berthold
Reservation (North Dakota) limit civil jurisdiction in domestic
relations cases to actions involving enrolled members of the Tribe.
Section 2(a)(3).

Regulations governing Courts of Indian Offenses authorize jurisdiction
over "all suits wherein the defendant is a member of the Tribe or Tribes
within their \[CFR court's\] jurisdiction, and of all other suits
between members and nonmembers which are brought before the \[CFR\]
courts by stipulation of both parties." 25 C.F.R. § 11.22.

Tribal codes usually also assert personal jurisdiction over persons who
are present, domiciled, or resident on the Tribal reservation or other
Tribal lands.[^151] Some codes specifically address non-Indians in that
context. For example, the Tribal Code of Keweenaw Bay Indian Community
of L'Anse Indian Reservation (Michigan) States the following:

Any person, whether Indian or non-Indian, and whether natural or created
by law, who is found within the territorial jurisdiction of this Court
as defined by Section 1.501 . . . shall be subject to the jurisdiction
of this Court. Non-Indian persons, by their residence, employment, or by
their participation in any other activity within the territorial
jurisdiction of this Court impliedly consent and submit to the
provisions of this Code and the jurisdiction of this Court.

Ch. 1.5, § 1.502.

The Law and Order Code of the Coeur d'Alena Tribe of Indians (Idaho)
asserts that "\[a\]ny non-Indian who voluntarily comes onto or lives
within the exterior boundaries of the Reservation hereby . . . consents
to jurisdiction." 1-2.01.

The Hualapai Tribe (Arizona) ensures that nonresidents are aware of the
significance of their presence on the reservation. Pursuant to the
Tribal code, a sign must be erected at all entrances to the Reservation
informing the general public that they have consented to Tribal
jurisdiction upon entering the Reservation.[^152]

If the respondent is a nonresident, many Tribal codes have long-arm
statutes authorizing the assertion of personal jurisdiction under
circumstances similar to State long-arm statutes.[^153]

The definition of "residence" was raised in the case of *Father v.
Mother*, No. 3 Mash. 204 (Mashantucket Pequot Tribal Court 1999).
Denying the defendant's Motion for Relief, the Tribal court found that
the court possessed exclusive subject matter jurisdiction over a
paternity and custody action brought by the member father if the child
was residing on the reservation at the time the original action was
begun. The mother, a non-member Indian who lived in the State of
Virginia, had argued that the child did not reside on the reservation;
she characterized the child's 10-month stay there as a visit. In ruling
that the child was a resident of the reservation, the court rejected
"the historically gendered and sexist rules of the western common law"
that presumed the child's residence was that of the mother's. Rather, it
looked to Tribal law with its focus on the well-being of the Tribal
member children:

> The Family Relations Law and Child Protection Law does not require a
> Tribal member child to have resided on Nation lands for any minimum
> amount of time before this Court may exercise its jurisdiction over
> him or her. In Tribal law, this is not an unusual omission. The lack
> of a requirement that residency be of a minimum duration reflects the
> special ties of native Americans to their ancestral homelands and
> reservations, and to the Tribal history, culture and extended family
> relations that are alive there. . . .. Thus for the Native American,
> the reservation is unlike any other place on the face of the earth.

**[Service of Process]{.underline}**[]{#__RefHeading___Toc161206431
.anchor} Finally, a valid exercise of Tribal court jurisdiction requires
valid service of process. When the civil action is being heard by a
Tribal court, service should comply with the relevant Tribal code. Most
Tribal codes allow personal service; service by registered mail, return
receipt requested; or, in certain circumstances, service by
publication.[^154]

The Tribal code may also specify who may serve process. [^155] For
example, the Nez Perce Tribal Code authorizes service by any person who
is not a party and who is at least 18 years old. At the plaintiff's
request, the court may require service of process by a Tribal police
officer or other person specially appointed by the court.[^156]

# 

# 

# 

# 

# 

# 

# 

# 

**\[page deliberately left blank\]**

**CHAPTER THREE**

# Table of Statutes and Authorities

######## Statutes and Regulations

General Crimes Act, 18 U.S.C. § 1152

Indian Child Welfare Act, P.L. No. 95-608 (1978)

Indian Civil Rights Act of 1968, P.L. No. 90-284, §§ 201-701, 82 Stat.
73, 77-81 (1968), codified at 25 U.S.C. §§ 1301 -- 41

Indian Reorganization Act, ch. 576, 48 Stat. 984 (1934), codified as
amended at 25 U.S.C. §§ 461-479

Major Crimes Act, ch. 341, § 9, 23 Stat. 362, 385, codified at 18 U.S.C.
§ 1153

Public Law 280 (enacted in 18 U.S.C., 25 U.S.C., and 28 U.S.C.)

18 U.S.C. § 1151

18 U.S.C. § 1152

18 U.S.C. § 1153

18 U.S.C. § 1162

25 U.S.C. §§ 1301 -- 41

25 U.S.C. § 1302

25 U.S.C. § 1321

25 U.S.C. § 1322

25 U.S.C. § 1323

25 U.S.C. § 1324

25 U.S.C. § 1911

28 U.S.C. § 1331

28 U.S.C. § 1332

28 U.S.C. § 1360

25 C.F.R. § 11.22

25 C.F.R. § 11.103

25 C.F.R. § 11.425

25 C.F.R. § 11.500

Tribal Child Support Enforcement Programs: Final Rule, 69 Fed. Reg.
16,638 (Mar. 30, 2004) (to be codified at 45 C.F.R. Pt. 309)

Confederated Tribes of the Coos, Lower Umpqua and Siuslaw Indian Tribal
Code, Section 2-2-4 Laws Applicable in Civil Actions

Coeur d'Alena Tribe of Indians, Law and Order Code, 1-2.01

Confederated Salish & Kootenai Tribes of the Flathead Reservation,
Tribal Laws, 1-2-104(2)(a)

Coquille Tribal Code, Tribal Court Ordinance 610.200(c)(1), (3)

Crow Law and Order Code, 1-153, 1-154

Fort McDowell Yavapai Community, Law and Order Code, Section 1-7.Civil
Jurisdiction, B (1)(b) (2000)

Fort Peck Comprehensive Code of Justice, Title XII, § 208

Hualapai Tribe, Civil and Criminal Law and Order Code Ch. 1, § 1.1 (1975

Hualapai Tribe, Civil and Criminal Law and Order Code Ch. 2, § 2.1
(1975)

Kalispel Tribe of Indians, Law and Order Code, Ch. 3, 3-401

Keweenaw Bay Indian Community of L'Anse Indian Reservation, Tribal Code
Ch. 1.5, § 1.502

Nez Perce Tribal Code, Chapter 2-2, Rule 4(c)

Sisseton-Wahpeton Sioux Tribe, Chapter 45 Act of Non-Domiciliaries,
Section 45-01-01 Personal Jurisdiction by Act of Non-Domiciliaries

The Three Affiliated Tribes of Fort Berthold Reservation, Section
2(a)(3)

**[State Attorney General Opinion]{.underline}**

Letter Opinion 94-L-245, written by the then Attorney General of North
Dakota

**[Case Law]{.underline}**

*Alaska v. Native Village of Venetie*, 522 U.S. 520 (1998)

*Atkinson Trading Co., Inc. v. Shirley*, 523 U.S. 645 (2001)

*Brendale v. Confederated Tribes and Bands of the Yakima Indian Nation,*
492 U.S. 408 (1989)

*Bryan v Itasca County*, 426 U.S. 373 (1976)

*California v. Cabazon Band* *of Mission Indians*, 480 U.S. 202 (1987)

*Duro v. Reina*, 495 U.S. 676 (1990)

*Ex Parte Crow Dog*, 109 U.S. 556 (1883)

*Fisher v. District Ct.*, 424 U.S. 382 (1976)

*Iowa Mutual Ins. Co. v. LaPlante,* 480 U.S. 9 (1987)

*Kennerly v. District Ct. of Montana*, 400 U.S. 423 (1971)

*McClanahan v. Arizona State Tax Comm'n*, 411 U.S. 164 (1973)

*Merrion v. Jicarilla Apache Tribe,* 455 U.S. 130 (1982)

*Mescalero Apache Tribe v. Jones*, 411 U.S. 145 (1973)

*Montana v. United States,* 450 U.S. 544 (1981)

*National Farmers Union Ins. Cos. v. Crow Tribe,* 471 U.S. 845 (1985)

*Nevada v. Hicks*, 533 U.S. 353 (2001)

*Oliphant v. Suquamish Indian Tribe*, 435 U.S. 191 (1978)

*Santa Clara Pueblo v. Martinez*, 436 U.S. 49 (1978)

*Strate v. A-1 Contractors*, 521 U.S. 438 (1997)

*Three Affiliated Tribes of the Fort Berthold Reservation v. Wold
Engineering, P.C.*, 467 U.S. 138 (1984)

*United States v. Antelope*, 430 U.S. 641 (1977)

*United States v. Kagama*, 118 U.S. 375 (1886)

*United States v. Lara*, 541 U.S. 193 (2004)

*United States v. Wheeler*, 435 U.S. 313 (1978)

*Washington v. Yakima Indian Nation*, 439 U.S. 463 (1979)

*White Mountain Apache Tribe v. Bracker,* 448 U.S. 136 (1980

*Williams v. Lee,* 358 U.S. 217 (1959)

*County of Lewis v. Nez Perce Tribe*, 163 F.3d \_\_\_ (9^th^ Cir. 1998)

*Wetsit v. Stafne*, 44 F.3d 823 (9^th^ Cir. 1995*)*

*Father v. Mother*, No. 3 Mash. 204 (Mashantucket Pequot Tribal Court
1999)

*Lilley v. Davis*, No. 293 (Fort Peck Court of Appeal Assiniboine and
Sioux Tribes 02/14/2000)

*Bad Horse v. Bad Horse,* 163 Mont. 445, 517 P.2d 893 (1974), *cert.
denied* 419 U.S. 847 (1984)

*Balyeat Law, PC v. Pettit*, 291 Mont. 196, 967 P.2d 398 (1998)

*Francisco v. State*, 556 P.2d 1 (Ariz. 1976)

*Harris v. Young*, 473 N.W.2d 141 (S.D. 1991).

*LeClair v. Powers*, 632 P.2d 370 (Okla. 1981)

*Lemke v. Brooks*, 614 N.W.2d 242 (Minn. 2000)

*Little Horn Bank*, 555 P.2d 211 (Mont. 1976)

*In Interest of M.L.S.,* 157 Wis. 2d 26, 458 N.W.2d 541 (1990)

*Martin v. Denver Juvenile Court*, 493 P.2d 1093 (Colo. 1972)

*Nenna v. Moreno,* 132 Ariz. 565, 647 P.2d 1163 (1982)

*South Dakota ex rel. Jealous of Him v. Mills,* 627 N.W.2d 790 (S.D.
2001)

*State v. Zaman*, 252 Ariz. Adv. Rep. 49 (Ariz. App. Div. 1, cr 960349,
decided 09/23/1997)

*State v. Zaman*, 194 Ariz. 442, 984 P.2d 528 (1999)

*State ex. rel. Flammond v. Flammond,* 190 Mont. 350, 621 P.2d 471
(1980)

*State Securities, Inc. v. Anderson,* 84 N.M. 629, 506 P.2d 786 (1973)

*Tracy v. Superior Ct.,* 810 P.2d 1030 (Ariz. 1991)

**[Periodicals/Publications]{.underline}**

Atwood, *Tribal Jurisdiction and Cultural Meanings of the Family*, 79
Neb. L. Rev. 577 (2000).

W. Canby, American Indian Law in a Nutshell (4^th^ Ed. 2004).

F. Cohen, Handbook of Federal Indian Law (ed. 1982).

Comment, *A World without Tribes? Tribal Rights of Self-Government and
the Enforcement of State Court Orders in Indian Country,* 61 U. Chi. L.
Rev. 707 (1994).

Comment, *Divisiveness and Delusion: Public Law 280 and the Evasive
Criminal/Regulatory Distinction*, 46 UCLA L. Rev. 1333 (1999).

Foerster, *Comment: Divisiveness and Delusion: Public Law 280 and the
Evasive Criminal/Regulatory Distinction*, 46 UCLA L. Rev. 1333 (1999).

Forum Summary, Tribal Leaders Forum on *Duro v. Reina*, held January 11,
1991. Sponsored by the American Indian Resources Institute in
conjunction with the National Indian Justice Center and the Native
American Rights Fund.

Goldberg, *Public Law 280: The Limits of State Jurisdiction over
Reservation Indians*, 22 UCLA L. Rev. 535 (1975).

Gould, *Tough Love for Tribes: Rethinking Sovereignty After Atkinson and
Hicks*, 37 New Eng. L. Rev. 669 (2003).

Hagan, Indian Police and Judges: Experiments in Acculturation and
Control (1966).

Hansen, *Survey of Civil Jurisdiction in Indian Country 1990*, 16 Am.
Indian L. Rev. No. 2 (Fall 1991).

Jimenez & Song \"Concurrent Tribal and State Jurisdiction under Public
Law 280,\" 47 AU L. Rev. 1627 (1998).

National American Indian Court Judges Association, Indian Courts and the
Future (1978).

National American Indian Court Judges Association, Justice and the
American Indian, Vol. 1, The Impact of Public Law 280 upon the
Administration of Justice on Indian Reservations (1974).

N. Newton *et al.*, eds., Cohen's Handbook of Federal Indian Law (2005
ed.).

Strommer & Osborne "'Indian Country' and the Nature and Scope of Tribal
Self-Government in Alaska," 22 Alaska L. Rev. 1 (2005).

**CHAPTER FOUR**[]{#__RefHeading___Toc161206433 .anchor}

**JURISDICTION IN DOMESTIC LAW CASES**

The myriad Congressional acts and Supreme Court cases \-- often
reflecting inconsistent policies, philosophies, and interpretations \--
have resulted in complex jurisdictional issues.[^157] This is true in
the domestic relations area.

Congress has recognized that a Tribe has a strong interest in
"preserving and protecting the Indian family as the wellspring of its
future."[^158] The Supreme Court has also stressed the importance of
Tribal power to regulate internal domestic relations.[^159] But inherent
jurisdiction is not conclusive in family law disputes in which one of
the parents is a non-Indian or nonmember Indian.

In 1989, a committee of the Conference of Chief Justices mailed a survey
to various individuals in the 32 States with Federally recognized Indian
country. Twenty-one States reported disputed jurisdiction cases.[^160]
The most frequently cited case problems arose under the Indian Child
Welfare Act. However, domestic relations disputes -- divorce, child
custody and support -- were next in frequency. Disputes arose over which
court system had jurisdiction over the establishment of paternity and
support, and over enforcement of existing orders. In a more recent
survey of Tribal courts, 83% of responding Tribal judges cited trouble
enforcing their decisions in State courts.[^161]

Although cooperation among Tribes and States has greatly improved since
then, including an increase in the use of intergovernmental and
cooperative agreements, issues still arise. The next section of this
monograph will focus on jurisdictional and operational issues arising in
paternity and child support cases in which at least one of the parties
is an American Indian.

# 

# 

# 

# 

# 

# 

# 

# 

**\[page deliberately left blank\]**

**CHAPTER FOUR**

# Table of Statutes and Authorities

######## Statutes and Regulations

Indian Child Welfare Act, P.L. No. 95-608 (1978)

**[Case Law]{.underline}**

*Fisher v. District Ct*., 424 U.S. 382 (1976)

*Montana v. United States*, 450 U.S. 544 (1981)

*Yakima v. Washington*, 439 U.S. 463 (1979).

**[Periodicals/Publications]{.underline}**

Rubin, *Tribal Courts and State Courts: Disputed Civil Jurisdiction
Concerns and Steps Toward Resolution*, State Ct. J. 9 (Spring 1990).

Stoner and Orona, *Full Faith and Credit, Comity, or Federal Mandate? A
Path that Leads to Recognition and Enforcement of Tribal Court Orders,
Tribal Protection Orders, and Tribal Child Custody Orders,* 34 N.M.L.
Rev. 381 (2004).

**\[page deliberately left blank\]**

**CHAPTER FIVE**[]{#__RefHeading___Toc161206435 .anchor} **PATERNITY
ESTABLISHMENT**

Parentage is at the heart of the determination of a duty to pay support.
When children are born outside of marriage, the first step in a support
establishment action is usually determination of paternity. A State IV-D
agency does not pursue paternity establishment in public assistance
cases where *good cause* exists.[^162] "Good cause" is an exception to
the public assistance recipient's obligation to cooperate with the State
IV-D office in its efforts to establish paternity. A finding of good
cause means that State IV-D efforts to establish paternity, or to
establish and enforce a child support obligation, cannot proceed without
a risk of harm to the custodial parent (or caretaker relative) and
child. Nor must a State IV-D agency establish paternity when the IV-D
agency has determined that it would not be in the best interest of the
child in a case involving incest or forcible rape, or in any case in
which legal proceedings for adoption are pending.[^163] Federal
regulations provide that the Tribal IV--D agency need not attempt to
establish paternity in any case involving incest or forcible rape, or in
any case in which legal proceedings for adoption are pending, if, in the
opinion of the Tribal IV--D agency, it would not be in the best
interests of the child to establish paternity.[^164]

# Determination of Paternity

**[Voluntary
Acknowledgment]{.underline}**[]{#__RefHeading___Toc161206437 .anchor} To
be eligible to receive Federal IV-D funding, States and Tribes must
operate a child support program that provides for the establishment of
paternity. Federal regulations setting the paternity establishment
requirements for a State IV-D program appear at 45 C.F.R. § 303.5.
Federal regulations setting paternity establishment procedures that must
be part of a Tribal IV-D program appear at 45 C.F.R. § 309.100.

One of the paternity establishment methods that State and Tribal IV-D
programs must provide is a voluntary acknowledgment of paternity. There
are no Federal regulations prescribing the voluntary acknowledgment
process for Tribes. However, State child support programs must ensure
that the civil process for acknowledging paternity is available at
hospitals and birthing centers.[^165] This process is often called
"in-hospital acknowledgment." Unmarried parents are not required to sign
a paternity acknowledgment but they must be given the opportunity to do
so at each hospital and birthing center in the State. As part of this
process, the putative father can consult with an attorney and may
request genetic tests prior to signing the acknowledgment. Once the
acknowledgment is signed, it is filed with the State registry of birth
records. State law must provide that the signed paternity acknowledgment
creates a rebuttable, or -- at State option -- a conclusive presumption
of paternity and can be the basis for a support order without further
paternity proceedings.[^166] Either parent has 60 days, from the date an
acknowledgment of paternity is signed, to revoke it for any reason. The
Rescission Form must be in writing. After this 60-day period has
expired, a parent must go to court to challenge it. If a parent does
bring an action in court after the 60-day time frame, the bases for
challenging the acknowledgment are limited to fraud, duress, or a
material mistake of fact.

States must give full faith and credit to a determination of paternity
made in another State through the paternity acknowledgment
process.[^167] There is no such requirement on Tribes, which are not
subject to the Federal Full Faith and Credit clause of the Constitution
in the absence of express legislation. Tribal courts may recognize such
determinations pursuant to comity. See the discussion herein.

**[Genetic Testing]{.underline}**[]{#__RefHeading___Toc161206438
.anchor} States must have laws requiring a child and all other parties
in a contested paternity case to submit to genetic tests upon the
request of any such party.[^168] They must also have procedures which
provide that any objection to genetic testing results must be made in
writing within a specified number of days before any hearing at which
such results may be introduced into evidence; if no objection is made, a
written report of the test results is admissible as evidence of
paternity without the need for foundation testimony or other proof of
authenticity or accuracy. Finally, States must have laws that create a
rebuttable or, at the option of the State, conclusive presumption of
paternity upon genetic testing results indicating a threshold
probability of the alleged father being the father of the child.[^169]

Tribal IV-D programs must have procedures requiring that, in a contested
paternity case (unless otherwise barred by Tribal law), the child and
all other parties must submit to genetic tests upon the request of any
such party.[^170] The phrase "otherwise barred by Tribal law" is
intended to cover situations in which, either by action of one or both
of the parties or the application of Tribal law, or both, paternity has
already been conclusively determined and may not be reconsidered. In
such cases, genetic testing to challenge the paternity determination
would not be authorized.[^171]

**[Judicial or Administrative
Proceeding]{.underline}**[]{#__RefHeading___Toc161206439 .anchor} In the
absence of an acknowledgment, a State IV-D plan must provide for the
establishment of paternity by bringing a legal action (before a court or
administrative forum) in accordance with State law.[^172] A Tribal IV-D
plan must provide for the establishment of paternity "by the process
established under Tribal law, code, and/or custom." [^173] Federal
regulations expressly state that establishment of paternity pursuant to
a Tribal IV-D program requirement has no effect on Tribal enrollment or
membership.[^174] However, in reality, paternity establishment can
affect enrollment if a tribe's enrollment process requires a birth
certificate and/or descent line. In such circumstances, if a man's name
is on the birth certificate, the child can be enrolled into the tribe
\-- regardless of whether the name is on the certificate due to a
paternity adjudication, a default paternity order, or a paternity
acknowledgment, and regardless of whether the man is the child's
biological father. Therefore, State and Tribal child support workers
need to remember the importance of paternity establishment for potential
Tribal children.

In a purely judicial setting before a State or Tribal court, a petition
or complaint is filed requesting the establishment of parentage. Notice
of the action is served, usually by certified mail or personal service,
upon the alleged father. If the alleged father does not admit paternity,
a trial is scheduled at which time both parties present evidence,
including relevant testimony or facts meeting any presumptions
recognized by the jurisdiction, and any genetic test results. Based on
an evaluation of the evidence, the judicial officer decides the issue of
paternity.

If the defendant has failed to respond after being served with the
appropriate case paperwork (i.e., summons and pleading seeking paternity
establishment), Federal regulations governing State IV-D programs
require the IV-D agency to seek entry of a default order.[^175] There is
no such requirement on Tribal IV-D programs.

Judicial proceedings are available in both private cases and cases
brought by a child support agency. In States using an administrative
process to determine paternity, the administrative proceedings are only
available in cases brought by a child support agency. In a typical
administrative process, the alleged father is notified of the allegation
of paternity and of a scheduled conference time. At the appointed time,
he has the opportunity to acknowledge paternity. If he does not
acknowledge paternity, an administrative hearing before an
administrative hearing officer is scheduled. At the hearing, both
parties present evidence, including relevant testimony of facts meeting
any presumptions recognized in the jurisdiction, and any genetic test
results. Based on an evaluation of the evidence, the administrative
hearing officer decides the issue of paternity. Some Tribes, such as the
Navajo Nation, have also established an administrative process for child
support cases.

Tribes that do not receive Federal IV-D funding may also provide forums
for the establishment of paternity. They do not need to meet Federal
IV-D regulatory requirements.

Paternity establishment after the death of the alleged father is an
issue that may arise among Indian children -- not for support purposes,
but because of the need to establish paternity to become enrolled with
the Tribe. In some circumstances the Department of Interior may also
determine the issue in a probate proceeding involving Indian trust land.

Pursuant to the Full Faith and Credit for Child Support Orders
Act,[^176] States and Tribes are required to recognize and enforce valid
child support orders. If such orders are premised on a finding of
paternity, the State or Tribe must honor such paternity findings.[^177]
States are also required by Federal law to give full faith and credit to
"stand alone" paternity determinations made in another State, whether
through an administrative process or a judicial process.[^178] Tribes
are not subject to this requirement.

**[Custom]{.underline}**[]{#__RefHeading___Toc161206440 .anchor}
Reuniting Indian fathers and their children is important for a number of
reasons. Knowing who and where the father is obviously affects the
children and other family members who want to reclaim kinship ties. In
Native American culture, fathers are expected to provide food and
shelter for their families. They are also traditionally viewed as
teachers, guides, role models, leaders, and nurturers. Determination of
paternity may also be a step toward Tribal enrollment. "Tribal
membership is directly related to Federal benefits. Membership also has
implications for legal jurisdiction, inheritance or restricted or trust
lands, and voting rights."[^179]

In developing regulations that govern Tribal IV-D programs, the Federal
government has recognized that Tribes may provide for the legal
determination of paternity pursuant to custom and religious practice.
Such regulations define "Tribal custom" to make it clear that the term
means unwritten law that has the force and effect of law.[^180]

# Tribal or State Subject Matter Jurisdiction

The decision of whether a Tribal court or State court has exclusive or
concurrent jurisdiction in a paternity case is influenced by a number of
factors: whether the State is a Public Law 280 State with civil
jurisdiction over domestic matters, whether the mother and alleged
father are members of the same Tribe, whether one party is an Indian and
the other is not, whether a party resides on a reservation or Tribal
land, whether conception occurred on or off the reservation, whether the
mother applied for public assistance from the State and the State IV-D
agency is bringing the paternity action, whether there is a Tribal forum
for a paternity action, and which court is making the initial decision
regarding jurisdiction. It is impossible to draw many "bright lines"
because the court rulings often conflict. For the purpose of the
following discussion, we will initially focus on whether the parents in
a particular case are American Indian. We will then note other factors
that seemed decisive for the court. State child support agencies should
keep in mind that if paternity has already been determined under Tribal
law, which usually includes custom, a State must give full faith and
credit to that determination and should not attempt to initiate a State
action for paternity establishment.

> **[Member Indian Mother and Member Indian Alleged Father/Reside on
> Reservation]{.underline}**[]{#__RefHeading___Toc161206442 .anchor}

***Public Law 280 Jurisdiction*** In general, a State with complete
Public Law 280 civil jurisdiction has jurisdiction over domestic
relations actions, to which Indians are parties, and which arise in
Indian country.[^181] A case in point is *Becker County Welfare
Department vs. Bellcourt*, 453 N.W.2d 543 (Minn.1990). In this case, the
mother, alleged father, and child were enrolled Tribal members who lived
on White Earth Reservation in Minnesota. As a result of the mother's
receipt of public assistance, Becker County initiated a paternity action
against Bellcourt in a State court. The court adjudicated paternity and
ordered support. Bellcourt appealed on the issue of subject matter
jurisdiction. Becker County pointed out that Public Law 280 conferred
jurisdiction over civil causes of action in Minnesota to which Indians
are parties. The father argued that the county's action was not based on
a civil law of "general application to private persons," but rather was
regulatory in nature and therefore outside of Public Law 280.

The Minnesota Court of Appeals disagreed. It concluded that, in seeking
reimbursement of public assistance, the county was not acting in a
regulatory capacity but was "only acting on behalf of a private party
who has assigned her rights to establish paternity and recover child
support."[^182] Because the action was a civil action of "general
application to private persons," the State trial court had properly
exercised its Public Law 280 jurisdiction. Noting that "the legislative
history of Pub. L. 280 indicates that the statute was intended to
redress the lack of adequate Indian forums,"[^183] the Court of Appeals
noted that the constitution of the Minnesota Chippewa Tribe did not
authorize creation of Tribal courts to deal with domestic relations
matters: "Thus, even though the tribe has a strong interest in
self-governance and in determining the parentage of Indian children,
Congress cannot have intended that there be no forum to execute the AFDC
reimbursement program it mandates."[^184] Where conception occurred
appeared to be an irrelevant factor in the court's analysis since it was
not discussed.[^185]

***No Public Law 280 Jurisdiction*** In the absence of Public Law 280
jurisdiction, if both parents are enrolled members of the same Tribe,
who live in Indian country, State courts have held that the Tribal court
has exclusive jurisdiction. The decision in *Jackson County Child
Support Enforcement Agency v. Swayney*[^186] is illustrative.

In *Jackson County,* the mother, alleged father, and child were all
enrolled members of the Eastern Band of Cherokee Indians living on the
reservation. The mother had applied for public assistance from the State
of North Carolina, and had assigned her right to establish paternity and
collect child support to the State. The State agency filed a paternity
action in State court; the alleged father challenged State court
jurisdiction. On appeal, the North Carolina Supreme Court held that the
State court lacked subject matter jurisdiction over the paternity
matter. Using the *Williams v. Lee* test, the court stated:

> The determination of the paternity of an Indian child is of special
> interest to Tribal self-governance, the right of reservation Indians
> to make their own laws and be governed by them. Such determination
> strikes at the essence of the tribe's internal and social relations.
> Thus, exclusive Tribal court jurisdiction over the determination of
> paternity, where the defendant is an Indian living on the reservation,
> is especially important to Tribal self-governance. The State's
> interest in having this matter litigated in its own courts Is less
> compelling . . . \[and\] the State may resort to the Court of Indian
> Offenses to secure a judgment or order determining the paternity of
> the child, thus meeting \[the Federal AFDC\] requirement.[^187]

The Supreme Court of North Dakota also held that a Tribal court had
exclusive jurisdiction to determine paternity when both parents and the
children were enrolled members of the same tribe, conception occurred on
the reservation, and the alleged father lived on the reservation. In
*M.L.M. v. L.P.M*., 529 N.W.2d 184 (N.D. 1995), the court concluded that
the mother's period of residency off the reservation and the alleged
father's off-reservation employment were not significant enough to
overcome the danger that "the exercise of such jurisdiction would
undermine the authority of the Tribal courts over reservation affairs
and thereby infringe on the right of the Indians to govern
themselves."[^188] In other cases, the North Dakota Supreme Court has
held that the State's provision of public assistance[^189] and a
defendant's delay of eight years in raising subject matter
jurisdiction[^190] are each insufficient to outweigh the Tribe's
significant interest in Tribal determination of parentage of children of
Tribal members when conduct occurred on the reservation.

South Dakota courts have also concluded that there is exclusive Tribal
court jurisdiction in a paternity action in which both parents are
enrolled Tribal members domiciled on the reservation.[^191]

In *Davis v. Means,*[^192] the Navajo Tribal court emphasized how
interwoven a child's Indian heritage is with paternity establishment and
why the Tribal court has jurisdiction to resolve paternity, including
the authority to order genetic testing: "The Navajo maxim is this: 'It
must be known precisely from where one has originated.' The maxim
focuses on the identity of a person (here the child) and his or her
place in the world, and is a crucial component of the tenet of family
cohesion."[^193] The court noted that establishing paternity with
reasonable certainty was essential for the family to achieve stability
and harmony.

In contrast to the above decisions is the Wisconsin case of *State v.
W.M.B*.[^194] The parties and child were all members of the Menominee
Tribe, who lived on the Menominee reservation. The action was a contempt
proceeding in which the father attacked the underlying State paternity
order as void. He argued that the Tribal court had exclusive
jurisdiction over any paternity action between Tribal members living on
the reservation because in 1976 Wisconsin had retroceded its
jurisdiction over the Menominee Indian Reservation, prior to initiation
of the State action in 1977. In its analysis, the Court of Appeals noted
that there were two barriers to a State's exercise of jurisdiction
relating to Indian matters. First, was there Federal law preempting a
State's authority to act? Second, did the State action infringe upon the
rights of tribes to establish and maintain Tribal government? The court
noted that "Wisconsin has recognized a trend toward reliance on Federal
preemption and away from the idea of inherent Indian sovereignty as an
independent bar to State jurisdiction."[^195]

The court first concluded that the two Federal regulations cited by
W.M.B as establishing Federal preemption -- 25 CFR 11.22 and 11.30 --
were enabling legislation of the Court of Indian Offenses and, as such,
were not Federal statutes establishing Federal preemption of the
exercise of subject matter jurisdiction by State courts over paternity
and child support actions involving members of Indian Tribes. The court
then examined whether State court jurisdiction unduly infringed on
Tribal self-governance. The court was influenced by the fact that,
despite Wisconsin's retrocession of jurisdiction, the Menominee Tribe
had not "exercised its sovereign governmental authority in the
resolution of paternity issues" in 1977. At the time of the State court
paternity hearing, there was no Tribal court and the record was silent
about the existence of any Tribal code dealing with paternity "that
could demonstrate Tribal interest in an assertion of jurisdiction." In
fact, the court noted, the Tribal court had subsequently determined
custody issues in the case, without questioning the State's jurisdiction
to adjudicate paternity. It held that the State court's judgment of
paternity and support was not void for lack of subject matter
jurisdiction.

It therefore appears that, at least for one State court, the
availability of a Tribal forum or statute for paternity establishment is
an important factor the court will consider in deciding whether State
jurisdiction infringes upon Tribal self-government.

> **[Member Indian Mother and Member Indian Alleged Father/One Member
> Resides off Reservation]{.underline}**[]{#__RefHeading___Toc161206443
> .anchor}

***Public Law 280 Jurisdiction*** In general, a State with complete
Public Law 280 jurisdiction over civil causes of action involving
Indians has jurisdiction over domestic relations matters if the cause of
action occurred in Indian country.[^196] None of the researched
paternity cases discussed Public Law 280 jurisdiction under facts in
which one of the Tribal members resided outside of Indian country.

***No Public Law 280 Jurisdiction*** In the absence of Public Law 280
jurisdiction, when both parents are enrolled members of the same Tribe
but one member lives off the reservation, State courts will conduct a
*Williams* preemption-infringement analysis. If one of the parties files
a paternity action in State court and jurisdiction is challenged, the
State court will likely focus on where the cause of action arose. If
conception occurred in Tribal territory, the State court will most
likely find that the Tribal court has exclusive jurisdiction. A case in
point is *McKenzie County Social Service Board v. C.G.*, 633 N.W.2d 157
(N.D. 2001). The case involved an Indian mother and alleged father from
the same Tribe. Conception occurred on the reservation. The mother
received public assistance from the State of North Dakota, which filed
the paternity and support action in State court on her behalf. The
alleged father lived off the reservation at the time the lawsuit was
filed. When the alleged father failed to appear at the hearing, the
State court entered a default order establishing paternity and support
and ordering reimbursement of public assistance. Eight years later, the
father moved to set aside the judgment for lack of subject matter
jurisdiction. The court treated the motion as a Rule 60b motion for
relief from a final judgment because the judgment was void.

The North Dakota appellate court used the infringement test to determine
whether State court jurisdiction was proper: Would State court
jurisdiction undermine the authority of Tribal courts over reservation
affairs and infringe on the right of Indians to govern themselves? The
court concluded that determination of the parentage of a child of Indian
Tribal members was intimately connected with the right of reservation
Indians to make their own laws and be ruled by them. The State provision
of public assistance, Title IV-D's requirements to recover support with
the possibility of Federal financial sanctions for nonperformance, and
the father's residency off the reservation were not enough to override
that Tribal interest. The court concluded that the State district court
had lacked jurisdiction to determine paternity in this case and the
order was void. Based on the facts, the appellate court ruled that the
Tribal court had exclusive jurisdiction.[^197]

In contrast is the case of *Anderson v. Beaulieu*, 555 N.W.2d 537 (Minn.
1996). In *Anderson,* the mother, alleged father, and child were all
members of the same Tribe. The mother and child lived off the
reservation; the mother received public assistance from the county. At
the time of the paternity and support action, which had been brought in
State court, the alleged father worked off the reservation. His motion
to dismiss for lack of subject matter jurisdiction was denied. After he
obtained employment on the reservation, he brought a motion for
reconsideration. The Minnesota appellate court asked whether the State
action would undermine the tribe's right of self-government. Citing the
case of *Jackson County CSEA v. Swayney*, but distinguishing the present
facts, the court concluded that State court jurisdiction had not
impinged on the tribe's self-governance.[^198] Although the mother,
father, and child were all members of the same Tribe, the mother and
child lived off the reservation. Second, the action arose off the
reservation because the mother had applied for AFDC through the
county.[^199] Finally, the court concluded that the "tribe's interest
\[in paternity establishment\] is outweighed by the State interest in
securing child support payments as required by the AFDC program." NOTE:
When the paternity action began, the father was employed off the
reservation. The court pointed out that by working off the reservation
and voluntarily agreeing to genetic testing, he had voluntarily
submitted himself to State jurisdiction. It is unclear to what extent
those factors were the main basis for the court's holding versus the
results of its infringement analysis.

*South Dakota ex rel. Jealous of Him v. Mills*, 627 N.W.2d 790 (S.D.
2001) also involved two member Indians, one of whom was an alleged
father domiciled off the reservation. The court upheld the State trial
court's jurisdiction in a paternity action between Tribal members: "When
one party becomes domiciled off the reservation, State and Tribal courts
enjoy concurrent jurisdiction, and the case may be adjudicated by
whichever court first obtains valid personal jurisdiction." The court
emphasized that it would have ruled differently if both members had been
domiciled on the reservation.

If the plaintiff files the paternity action in Tribal court and the
defendant challenges subject matter jurisdiction, the Tribal court will
most likely reject the challenge. When both parties are enrolled members
of the same Tribe, the Tribal court will most likely conclude that it
has jurisdiction, regardless of the residence of the parties, because of
the importance of paternity establishment to Tribal interests. If
conception occurred on the reservation, there is a strong argument for
exclusive Tribal jurisdiction.

In summary, when both parties are members of the same Tribe but one of
the Tribal members lives off the reservation, the facts of the specific
case -- where conception occurred, whether public assistance was
provided by the State, whether there are consensual contacts between the
defendant and the forum \-- may be dispositive regarding jurisdiction.

**[Member Indian Mother and Member Indian Alleged Father/Both Parents
Reside off Reservation]{.underline}**[]{#__RefHeading___Toc161206444
.anchor} No cases were found with this fact pattern. Although all
parties lived off the reservation in *Roe v. Doe*, 649 N.W.2d 566 (N.D.
2002), the parties were not both member Indians. See discussion below.
In Attorney General's Opinion 2000-F-07, the North Dakota Attorney
General discusses hypothetical fact patterns regarding paternity actions
involving enrolled Tribal members. Noting that there is no bright-line
test for determining jurisdiction, she concluded that under North Dakota
law, which is respectful of Tribal interests, it would be appropriate
for a county attorney to invoke State court jurisdiction when conception
and the application for public assistance take place off the
reservation, and all parties live off the reservation; in her opinion,
State court jurisdiction in such a case would not unduly infringe upon
Tribal sovereignty. A Tribal court may reach a different conclusion if
it finds that such action does constitute an undue infringement.

**[Member Indian Mother and Non-Member/Non-Indian Alleged
Father]{.underline}**[]{#__RefHeading___Toc161206445 .anchor}

***Public Law 280 Jurisdiction*** In general, a State with complete
Public Law 280 jurisdiction over civil causes of action, has
jurisdiction over domestic relations matters that occur in Indian
country located within that State, involving Indians [or to which
Indians are parties]{.underline}.[^200] None of the researched paternity
cases discussed Public Law 280 jurisdiction under facts involving one
party who was a nonmember Indian or non-Indian.

***No Public Law 280 Jurisdiction*** In the absence of Public Law 280
jurisdiction, when the alleged father is a non-Indian, and the action is
filed in State court, State courts have usually engaged in a *Williams*
preemption-infringement analysis. The analysis is the same, regardless
of whether the party is a non-member Indian or a non-Indian.[^201] A
State decision that emphasizes that point is *Roe v. Doe*, 649 N.W.2d
566 (N.D. 2002). The case involved parents from different Tribes, who
lived off the reservation. When the mother initiated a State action to
establish paternity and support, the father challenged State court
jurisdiction. Upholding the trial court's exercise of jurisdiction, the
North Dakota court stated that, as a nonmember of the mother's Tribe,
the father had the same standing as a non-Indian, and thus could not
assert the Tribe's right of self-government against the Tribe's own
member. In other words, the "infringement test" could not be used
offensively by a non-member Indian against a member Indian who had
chosen to file her paternity action in State court.[^202]

The court further held that when two Tribes were involved, each Tribe
needed to conduct the *Williams* infringement test separately in the
context of its own Tribe and Tribal member. Here, the court balanced the
Tribe's "significant interest in determining the parentage of one of its
members" against the facts of this case. The court concluded that State
court jurisdiction did not infringe upon the Tribe's right to govern
itself. In fact, given that the parents' relationship occurred off any
reservation, the place of conception was unknown but most likely took
place off the reservation, the parents signed a paternity acknowledgment
off the reservation, the parents lived off the reservation, and the
mother and child were receiving public assistance from the State, "the
existence of any Tribal court jurisdiction, much less exclusive Tribal
court jurisdiction, is questionable."[^203]

The Arizona Supreme Court has also upheld State court jurisdiction in an
action brought by the State against a non-Indian father to determine
paternity.[^204] The facts that conception occurred on the reservation
and that all parties resided on the reservation were not dispositive.

Placing emphasis on the Tribal interest in paternity establishment are
two Tribal court decisions: *Solomon v. Jantz*, 25 Indian L. Rptr. 6251
(Lummi Court 1998) and *Tafaya v. Ghashghaee*, 25 Indian L. Rptr. 6193
(Pueblo of Pojoaque Court 1998). In both cases, the Tribal courts
concluded that the Tribal court had properly exercised jurisdiction
against a non-Indian in a paternity/support action. The courts did not
discuss the Supreme Court holdings in *Montana v. United States* or
*Nevada v. Hicks*.[^205]

No cases were found post *Nevada* in which a nonmember Indian or
non-Indian challenged Tribal court jurisdiction in a paternity action,
and the Indian plaintiff argued that where conception occurred on the
reservation, the facts met one or both prongs of the *Montana* test.

Most Tribal participants in a 1991 ABA telephone survey responded that
intertribal paternity situations usually are not troublesome. The
opinion expressed, especially among Tribal judges, was that there exists
a high level of cooperation between most Tribal court systems. Tribal
judges stated that they were much more likely in intertribal matters to
telephone one another, or otherwise agree upon a forum, than they were
in Tribal/State matters. Most State and Tribal judges also remarked,
however, that they desired more frequent interaction between States and
Tribes as a way to quickly resolve many of the difficulties associated
with determining the paternity of Indian children.

**[Non-Indian/Non-Member Mother and Indian Alleged
Father]{.underline}**[]{#__RefHeading___Toc161206446 .anchor} When the
non-Indian or non-member Indian mother files a paternity action against
an Indian alleged father in State court, the Indian alleged father may
raise a jurisdictional challenge. See above for a discussion regarding
the role of Public Law 280 jurisdiction.

If conception occurred off the reservation or if the non-member Indian
or non-Indian mother applied for public assistance from the State, and
the State court views that action as the date the cause of action arose,
Public Law 280 will not apply because the cause of action did not arise
within Indian country.

Where Public Law 280 is not applicable, the State court will conduct a
*Williams* preemption-infringement test. Using such a test in the case
of *State ex rel. Vega v. Medina,*[^206] the Iowa Supreme Court ruled
that the State trial court had properly exercised subject matter
jurisdiction over the State's action to establish paternity, current
child support, and reimbursement of public assistance, when the State,
child and mother were non-Indians; the child's conception arose off
reservation; and the State has a strong interest in protecting its
assistance program as well as ensuring the well-being of its citizens.
The court also noted that the defendant's Tribe did not have a Tribal
court to handle paternity and support cases.

If the non-Indian or non-member mother files a paternity action in the
court of the Tribe in which the alleged father is enrolled, the
non-Indian or non-member Indian is deemed to have consented to Tribal
jurisdiction. The issue then becomes one of determining whether Tribal
law authorizes jurisdiction in such a case.[^207] If it does, and if the
Tribal court has personal jurisdiction over the Indian alleged father,
the Tribal court will most likely uphold Tribal court jurisdiction. In
*Dallas v. Curley*, (No. AP-005-94 - Appellate Court of the Hopi Tribe),
the Appellate Court held that the Hopi Tribal court properly exercised
jurisdiction over a paternity action brought by a nonmember Indian
mother against a member of the Hopi Tribe.

**[Non-Indian Mother and Non-Indian Alleged
Father]{.underline}**[]{#__RefHeading___Toc161206447 .anchor} If neither
parent is an Indian, Public Law 280 jurisdiction is inapplicable. If the
parties live off the reservation and conception occurred off the
reservation, the State court has exclusive subject matter jurisdiction.
If the parties live on the reservation and conception occurred on the
reservation, it is still likely that a State court will find it has
jurisdiction on the basis that there is no infringement of Tribal
interest. If the parties live on the reservation, the non-Indian mother
filed the paternity action in Tribal court, and the non-Indian father
challenges subject matter jurisdiction, the Tribal court will likely
focus on where the cause of action arose and whether exercise of
jurisdiction is necessary to protect the political integrity, economic
security, or health or welfare of the Tribe.[^208]

**\[page deliberately left blank\]**

**CHAPTER FIVE**

# Table of Statutes and Authorities

######## 

######## Statutes and Regulations

Full Faith and Credit Clause of Constitution

Full Faith and Credit for Child Support Orders Act, P.L. No. 103-383
(1994), codified at 28 U.S.C. § 1738B

Public Law 280 (enacted in 18 U.S.C., 25 U.S.C. and 28 U.S.C.)

28 U.S.C. § 1738B

45 C.F.R. § 302.31

45 C.F.R. § 302.70

45 C.F.R. § 303.5

45 C.F.R. § 309.05

45 C.F.R. § 309.100

Tribal Child Support Enforcement Programs: Final Rule, 69 Fed. Reg.
16,638 (Mar. 30, 2004) (to be codified at 45 C.F.R. Pt. 309)

**[State Attorney General Opinion]{.underline}**

North Dakota Attorney General's Opinion 2000-F-07

**[Case Law]{.underline}**

*Fisher v. District Ct.*, 424 U.S. 382 (1976)

*Montana v. United States*, 450 U.S. 544 (1981)

*Nevada v. Hicks*, 533 U.S. 353 (2001)

*Strate v. A-1 Contractors,* 520 U.S. 438 (1997)

*Dallas v. Curley*, (No. AP-005-94 - Appellate Court of the Hopi Tribe)

*Davis v. Means,* 21 Indian L. Rptr. 6125 (Navajo 1994)

*Solomon v. Jantz*, 25 Indian L. Rptr. 6251 (Lummi Court 1998)

*Tafaya v. Ghashghaee*, 25 Indian L. Rptr. 6193 (Pueblo of Pojoaque
Court 1998)

*Anderson v. Beaulieu*, 555 N.W.2d 537 (Minn. 1996)

*Becker County Welfare Department vs. Bellcourt*, 453 N.W.2d 543
(Minn.1990)

*Harris v. Young*, 473 N.W.2d 141 (S.D. 1991)

*Jackson County Child Support Enforcement Agency v. Swayney,* 352 S.E.
2d 413 (N.C. 1987)

*Jackson County Smoker v. Smoker, Jr.*, 341 N.C. 182, 459 S.E.2d 789
(1995)

*Marriage of Purnel v. Purnel*, 52 Cal. App. 4^th^ 527, 60 Cal. Rptr. 2d
667 (1997)

*McKenzie County* *Social Serv. Bd. v. C.G.,* 633 N.W.2d 157 (N.D. 2001)

*McKenzie County Social Serv. Bd. v. V.G*., 392 N.W.2d 399 (N.D. 1986)

*M.L.M. v. L.P.M*., 529 N.W.2d 184 (N.D. 1995)

*Roe v. Doe*, 649 N.W.2d 566 (N.D. 2002)

*South Dakota ex rel. Jealous of Him v. Mills*, 627 N.W.2d 790 (S.D.
2001)

*State ex rel. Vega v. Medina,* 549 N.W.2d 507 (Iowa 1996)

*State v. Zaman,* 190 Ariz. 208, 946 P.2d 459 (1997), *cert. denied*,
522 U.S. 1148 (1998)

*State v. Zaman*, 187 Ariz. 81, 927 P.2d 347 (1996) (*Zaman I)*

*State v. W.M.B.*, 159 Wis.2d 662, 465 N.W.2d 221 (1990)

*Wells v.* *Wells*, 451 N.W.2d 402 (S.D. 1990)

**[Periodicals/Publications]{.underline}**

Office of Child Support Enforcement, U.S. Dept. of Health & Human Serv.,
Strengthening the Circle: Child Support for Native American Children
(1998).

[]{.mark}

**CHAPTER SIX**[]{#__RefHeading___Toc161206449 .anchor}

**SUPPORT ESTABLISHMENT**

# DETERMINATION OF SUPPORT OBLIGATION

**[Judicial or Administrative
Proceeding]{.underline}**[]{#__RefHeading___Toc161206451 .anchor} When
paternity is not an issue, the next stage of case processing is the
establishment of a support order. Federal regulations governing both
State and Tribal IV-D programs require the use of local law and
procedures in establishing the support order.[^209] The action may be
brought before a judicial or an administrative forum.

When a State IV-D agency brings an action to establish a support order,
it must meet certain Federal timeframes.[^210] The Federal regulations
require the establishment of a support order or, at a minimum, the
service of process needed to begin the order establishment process,
within 90 calendar days of locating the alleged father or non-custodial
parent. If service of process cannot be obtained within this timeframe,
the State IV-D agency must document that it has made a diligent effort
to serve process. According to these regulations, if a State's tribunal
dismisses a petition to establish a support order without prejudice, the
child support office must review the case and examine the tribunal's
reasons for dismissing the establishment action. If, after reviewing the
reasons, the child support office determines that it would be
appropriate to pursue the order establishment action again in the
future, the office must bring the establishment action at that time.
Finally, in a case whose parties acknowledge paternity, the regulations
require the State IV-D agency to obtain a support order based upon that
acknowledgment. Tribal IV-D agencies are also required to provide for
the establishment of a support order, but are not subject to Federal
timeframes.

Within both State and Tribal IV-D agencies, the establishment process
typically involves the following steps:

1.  Contact parents

2.  Interview parents

3.  Apply guidelines

4.  Obtain order by consent or adjudication

5.  Create fiscal account(s).

Especially among Tribal cultures, there is often an emphasis on working
with the parties to reach an agreement short of full litigation.

**[Determination of Support
Amount]{.underline}**[]{#__RefHeading___Toc161206452 .anchor} Pursuant
to the Family Support Act of 1988, States, as a condition of receiving
Federal IV-D funding, must have support guidelines that constitute
rebuttable presumptions of the correct amount of support to be awarded
by courts or administrative agencies when setting or modifying child
support orders.[^211] Federal regulations establishing requirements for
Tribal IV-D programs also require support guidelines. Both State and
Tribal IV-D plans must establish one set of guidelines that are based on
a specific descriptive and numeric criteria and result in a computation
of the support obligation.[^212] The support amount calculated pursuant
to the guidelines is presumed to be correct. The presumptive amount is
subject to rebuttal but, if a tribunal deviates from the presumptive
amount, it must provide written findings on the record as to why the
presumptive amount would be unjust or inappropriate in the specific
case.[^213] Tribes and States receiving IV-D funding must also review
and revise, if appropriate, their support guidelines at least once every
four years.[^214]

The Federal regulations governing State child support guidelines also
require the following:

-   The guidelines must consider all earnings and income of the
    noncustodial parent.

    In the case of *Marriage of Purnel v. Purnel*,[^215] the California
    Court of Appeal, Fourth District, was asked to determine whether the
    trial court impermissibly considered the noncustodial parent's
    receipt of funds from Indian trust allotment lands. Following a
    divorce proceeding, in which the non-Indian husband was awarded
    custody of the children, the State trial court ordered the
    noncustodial parent, who was a member of the Auga Caliente Band of
    the Cahuilla Indians, to pay support of \$1063 per month per child
    for three children. The wife did not challenge the amount of the
    support order itself. Rather on appeal she argued that the State of
    California had no jurisdiction "to tax Indian reservation lands or
    the income earned by Indians from activities carried on within the
    boundaries of the reservation."

    The California Court of Appeals upheld the State trial court's
    jurisdiction as well as the award of support. The court concluded
    that the support award did not constitute an assignment of Indian
    trust property or monies, which is prohibited by Federal law. The
    support order did not require that the support be paid from any
    particular income source. The wife had "very substantial assets
    quite apart from the lucrative leases of her trust allotment lands,
    assets which are in no way related to her being a Native
    American."[^216] The court also noted that once the wife received
    payment of the rental income from the lease of her Indian Trust
    Allotment lands, it lost its "Indian" character and became fungible
    money, which could be used to pay support as any other money could.

-   The guidelines must provide for the health care needs of the child,
    through health insurance or other means.

Federal regulations governing Tribal child support guidelines allow a
Tribal IV-D plan to indicate whether non-cash payments will be permitted
to satisfy support obligations.[^217] Comments on the proposed final
rule governing Tribal child support enforcement programs pointed out
that many reservations and Indian communities are located in remote
areas with little or no industry or business; thus, there are limited
opportunities for cash employment. In drafting the final rule, OCSE was
persuaded "to accommodate the long-standing recognition among Indian
Tribes that all resources that contribute to the support of children
should be recognized and valued by the IV-D programs.[^218] Federal
regulations define "non-cash support" as "support provided to a family
in the nature of goods and/or services, rather than in cash, but which,
nonetheless, has a certain and specific dollar value.[^219] The non-cash
support must directly contribute to the needs of a child, such as
"making repairs to automobiles or a home, the clearing or upkeep of
property, providing a means for travel, or providing needed resources
for a child's participation in Tribal customs and practices."[^220] If
non-cash payments will be permitted to satisfy support obligations,
Federal regulations[^221] require the following:

-   The Tribal support order allowing non-cash payments must State the
    specific dollar amount of the support obligation;

-   The non-cash payments are not permitted to satisfy assigned support
    obligations.[^222]

In the comments and responses to the proposed final rules, OCSE stresses
that States should be able to process Tribal orders allowing non-cash
payments through their automated systems because of the requirement that
the orders also clearly include a specific dollar amount reflecting the
support obligation.[^223] For example, a Tribal support order could
provide that an obligor owes \$200 a month in current support, which may
be satisfied with the provision of firewood suitable for home heating
and cooling to the custodial parent and child. The order could provide
that a cord of firewood has a specific dollar value of \$100 based on
the prevailing market. Therefore, the obligor would satisfy his support
obligation by providing two cords of firewood every month. The valuation
of non-cash resources is the responsibility of the Tribe.[^224]

In a case decided by the Northern Plains Intertribal Court of Appeals,
*Attikai v. Thompson, Sr.*,[^225] the Court of Appeals emphasized the
cultural differences between the "non-Native American population of the
State of South Dakota and the Native American population of the Crow
Creek Sioux Tribe." Because of those differences, the Tribal court had
discretion as to application of South Dakota State support guidelines
and to adherence to South Dakota case law interpreting such guidelines.
The mother had argued that the father had a duty to support his
firstborn child, paramount to subsequent children born of the father.
She based her position on a South Dakota case. The Court of Appeals held
that the Tribal trial court did not need to adhere to such case law if
it did not "fit within the acceptable cultural standards" of the Crow
Creek Sioux Tribe. However, because there was no record about whether
the Tribe "accepts as part of its cultural standard that the firstborn
child has the paramount right of support over later born children,
whether born within a marriage or outside of a marriage," the court
remanded the issue back to the Tribal trial court for further hearings.
If necessary, the court noted that it would be appropriate for the
Tribal court judge to have testimony, possibly from Tribal elders, on
this issue.

# TRIBAL OR STATE SUBJECT MATTER JURISDICTION

> **[Member Indian Custodian and Member Indian Noncustodian/Reside on
> Reservation]{.underline}**[]{#__RefHeading___Toc161206454 .anchor}

***Public Law 280 Jurisdiction*** In a complete Public Law 280 State,
the State has jurisdiction over "civil causes of action between Indians
or to which Indians are parties which arise in the areas of Indian
country listed opposite the name of the State to the same extent that
such State has jurisdiction over other civil causes of action, and those
civil laws of such State that are of general application to private
persons or private property shall have the same force and effect within
such Indian country as they have elsewhere within the State.\"[^226] In
*County of Inyo v. Jeff*,[^227] the California court found that
California had concurrent jurisdiction in a child support action
pursuant to Public Law 280. The court conducted an infringement analysis
under *Williams* and concluded that the State had subject matter
jurisdiction, despite the fact that both parents were member Indians.
The dispositive factor for the court was the Federal requirement that
States vigorously pursue the collection of child support from
noncustodial parents or risk the loss of Federal funding.

Reaching a contrary result was the Iowa Supreme Court in *State of Iowa,
ex rel. Dept. of Human Serv. v. Whitebreast*.[^228] In that case, both
parties were members of the Sac and Fox Tribe of the Mississippi. The
custodial parent had assigned her support rights to the State in order
to receive public assistance from the State of Iowa. In order to secure
reimbursement of public assistance and prospective support from the
noncustodial parent, the State agency brought an action in State court.
The district court had dismissed the State's petition. On appeal, the
Iowa Supreme Court affirmed the dismissal. Concluding that the State
action was regulatory in nature rather than one of general application
to private persons, it held that Public Law 280 was inapplicable.[^229]
The court then applied the *Williams* preemption-infringement analysis,
concluding that State jurisdiction was preempted:

> \[T\]he public nature of the Child Support Recovery Unit . . . seems
> to us inescapable. Though its obligations are statutorily described in
> terms of "services" to be furnished in the enforcement of child
> support awards, CSRU's function is clearly regulatory in nature. Its
> duties are defined and shaped by a host of administrative regulations.
> . . . Congress has not given Public Law 280 States, like Iowa, the
> jurisdiction to adjudicate controversies spawned by . . . regulation
> involving Tribal Indians. Thus we affirm the district court's
> dismissal of the State's petition.
>
> Inherent in our decision is the recognition that in areas of
> regulation and taxation our State laws must give way to the
> pre-emptive force of Federal and Tribal interests. . . .[^230]

***No Public Law 280 Jurisdiction*** In States without Public Law 280
jurisdiction, where the cause of action arose in Indian country and both
parents are member Indians who reside in Indian country, the outcome is
straightforward -- the Tribal court has exclusive jurisdiction over the
action.[^231] This conclusion is consistent with the Supreme Court's
holdings that Indian tribes retain an inherent authority to regulate
domestic relations among members. However, the outcome becomes less
clear when the custodian receives public assistance from the State. Due
to the assignment of support rights, some State courts find that the
cause of action arose off the reservation. That may be sufficient to
"tip the balance" to the State under some State courts' infringement
analysis.

For example, the North Carolina court in *Jackson County Child Support
Enforcement v. Swayney*[^232] upheld State court jurisdiction over the
child support component of an action between Tribal members. The
conclusion is especially interesting given that the court denied State
court subject matter jurisdiction over the paternity component of the
action. Unlike paternity, for which the court found undue infringement
on Tribal self-governance by the State, in the child support context the
court found that the State was specifically required by the Federal
government as part of the "AFDC[^233] program to collect a debt owed to
the State for past public assistance and to obtain a judgment for future
child support."[^234] North Carolina later confirmed its opinion that
the State and Tribe have concurrent jurisdiction when the action is one
to recover AFDC payments. In such a case, the court concluded, the
tribe's interest in self-government is not significantly affected by
concurrent jurisdiction.[^235] The court also emphasized, however, that
where the Tribal court has already assumed jurisdiction, it is unlawful
infringement for the State court to later assume jurisdiction.[^236]

In contrast, the Navajo Supreme Court has held that the provision of
State public assistance is irrelevant and that Tribal jurisdiction is
exclusive.[^237] In *Billie v. Abbott*, both parties were enrolled
Navajos living on the Utah side of the Navajo reservation. A Navajo
divorce decree ordered Billie, who was unemployed, to pay \"reasonable
child support when he is employed and the monthly amount to be arranged
by the parties.\" There was never a judicial determination of the
support amount. Mrs. Billie subsequently applied to the State of Utah
for AFDC benefits. In the absence of a court order specifying a support
amount, the Utah child support agency used its administrative process to
establish a support obligation in the amount of the AFDC grant. When the
amount was not paid, Abbott, the director of Utah\'s child support
agency, submitted the case for Federal income tax refund intercept. For
several years Billie\'s tax refund was intercepted, collecting
\$218,278.66. In 1987, Billie brought an action in Navajo Tribal court
seeking an injunction against further use of Utah\'s tax interceptions,
the return of his intercepted Federal tax refunds, and payment of his
cost and attorney\'s fees. On appeal, the Navajo Nation Supreme Court
affirmed the Tribal court\'s decision as it related to subject matter
and personal jurisdiction: "\[T\]he Navajo Nation's exclusive power to
regulate domestic relations among Navajos living within its borders is
beyond doubt."[^238]

The Navajo Nation Supreme Court concluded that even if the obligee was
receiving AFDC benefits from the State, the Tribal court had exclusive
jurisdiction to establish the support obligation, to establish the
arrearage amount, and to enforce the support order.

Although Utah has an interest in serving eligible Navajo children, the
manner in which it determines eligibility (use of non-Navajo law)
implicates essential Navajo Tribal relations, and in the end Utah
jeopardizes the rights of Navajos to have their support decided by
Navajo courts. Only Navajo courts using Navajo law can decide Billie\'s
child support obligation. Only Navajo courts can be used to collect
past-due support owed by Navajos living on the Navajo reservation. . . .
Utah\'s decision on Billie\'s support obligation would not only
adversely affect Navajo authority over internal Tribal matters, but it
may encourage Navajos to go directly to Utah in hopes of receiving a
larger award. State interference would indeed hinder the development of
Navajo domestic relation law.[^239]

> **[Member Indian Custodian and Member Indian Noncustodian/One Member
> Resides off Reservation]{.underline}**[]{#__RefHeading___Toc161206455
> .anchor}

***Public Law 280 Jurisdiction*** In general, a State with complete
Public Law 280 jurisdiction over civil causes of action has jurisdiction
over domestic relations matters involving Indians, which occur in Indian
country located within that State.[^240] None of the researched support
establishment cases discussed Public Law 280 jurisdiction under
circumstances in which one of the Tribal members resided outside of
Indian country.

***No Public Law 280 Jurisdiction*** In the absence of Public Law 280
jurisdiction, when both parents are enrolled members of the same Tribe
but one member lives off the reservation, and the action is filed in
State court, State courts will usually conduct a *Williams*
preemption-infringement analysis to resolve any jurisdictional
challenge. As stated in the paternity discussion, there is no definitive
answer regarding subject matter jurisdiction in this fact pattern. South
Dakota has case law holding that when one Tribal member resides outside
the reservation, and the other parent and child reside on the
reservation, the State and Tribal courts possess concurrent jurisdiction
in a child support action.[^241] The case may be adjudicated by the
first tribunal to validly exercise jurisdiction.

The North Dakota Supreme Court recently reached a similar
conclusion.[^242] In its decision, the court distinguished between
paternity actions between enrolled Tribal members (over which prior
North Dakota decisions have found exclusive Tribal jurisdiction) and
support establishment actions between enrolled Tribal members. The court
cited with approval the North Carolina decision of *Jackson County Child
Support Enforcement Agency v. Swayney*,[^243] which also distinguished
between paternity and support establishment actions. The North Dakota
Supreme Court somewhat narrowed the reach of its decision by holding
"Tribal courts and State courts have concurrent subject-matter
jurisdiction to determine a support obligation against an enrolled
Indian, where parentage is not at issue[^244] and the defendant is not
residing on the Indian reservation when the action is commenced."[^245]
Nevertheless, the Chief Justice filed a dissent, finding the majority's
distinction between paternity cases and support establishment cases, and
its corresponding conclusion that State court jurisdiction infringes on
Tribal interests in the former but not the latter, troubling: "It seems
to me to be presumptuous for the State courts to determine for the
Tribes what is infringement on their right to govern themselves."

**[Member Indian Custodian and Member Indian Noncustodian/Both Parents
Reside off Reservation]{.underline}**[]{#__RefHeading___Toc161206456
.anchor} No cases were found with this fact pattern. When conception and
the application for public assistance take place off the reservation,
and all parties live off the reservation, at least one State Attorney
General has concluded that State court jurisdiction would not unduly
infringe upon Tribal sovereignty and therefore has authorized the child
support agency to consider filing such cases in State court.[^246]

**[Member Indian Custodian and Non-Member/Non-Indian
NonCustodian]{.underline}**[]{#__RefHeading___Toc161206457 .anchor}

***Public Law 280 Jurisdiction*** In general, a State with complete
Public Law 280 jurisdiction over civil causes of action has jurisdiction
over domestic relations matters involving Indians, which occur in Indian
country located within that State.[^247] If the plaintiff is the State
IV-D agency bringing an action on behalf of an Indian custodial parent
against a non-Indian, at least one court has concluded that the case is
public in nature and is not one involving a private support
action.[^248] Under such an analysis, the case would then be considered
one involving two non-Indians and Public Law 280 would be inapplicable.
Other State courts focus on the assignment nature of the State's
interest. Because the State derives its interest in the child support
action from the Indian custodian by means of an assignment of support
rights, such courts view the action as involving an Indian and therefore
invoking Public Law 280 jurisdiction.[^249]

***No Public Law 280 Jurisdiction*** In the absence of Public Law 280
jurisdiction, when one parent is a non-member Indian and the action is
filed in State court, the State court will usually engage in a
*Williams* preemption-infringement analysis. The court will conduct the
same analysis, regardless of whether the noncustodian is a non-member
Indian or a non-Indian. Recognizing the sovereign status of each
Federally recognized Tribe, the Supreme Court has treated non-member
Indians in the same way as non-Indians with regard to jurisdictional
issues.[^250]

If the Indian custodial parent files the support action in Tribal court
and the non-member Indian or non-Indian challenges jurisdiction, the
Supreme Court's holdings in *Montana v. United States,*[^251] *Strate v.
A-1 Contractors,*[^252] and *Nevada v. Hicks*[^253] become relevant. The
Tribal court must decide whether jurisdiction over the non-member
noncustodian is necessary to protect Tribal self-government or to
control internal relations. At least with regard to non-Indians whose
claims arose on non-Indian land, the *Montana* Court has held that
Tribal jurisdiction is presumptively lacking. Absent express
authorization by Federal statute or treaty, Tribal jurisdiction over the
conduct of nonmembers exists only in the following limited
circumstances: either (1) the nonmember entered into a consensual
relationship with the Tribe or its members, or (2) the nonmember's
activity directly affects the Tribe's political integrity, economic
security, health, or welfare.[^254] When one of the parties is an Indian
and the other is a non-Indian or nonmember Indian, the establishment of
support arguably would fall within those exceptions.

**[Non-Indian/Non-Member Custodian and Indian
NonCustodian]{.underline}**[]{#__RefHeading___Toc161206458 .anchor} When
the non-Indian or non-member Indian custodial parent files a support
establishment action against an Indian noncustodial parent in State
court, the Indian obligor may raise a jurisdictional challenge.

***Public Law 280 Jurisdiction*** In general, a State with complete
Public Law 280 jurisdiction over civil causes of action has jurisdiction
over domestic relations matters involving Indians which occur in Indian
country located within that State. See above for a discussion regarding
the role of Public Law 280 jurisdiction. One of the few reported child
support decisions to extensively discuss Public Law 280 jurisdiction is
*Marriage of Purnel v. Purnel*. [^255] The case was a post-judgment
proceeding, following an earlier State court divorce decree, in which
the trial court ordered the wife, a member of the Agua Caliente Band of
the Cahuilla Indians, to pay support to her non-Indian husband. One of
the issues raised was whether the State of California properly exercised
jurisdiction. In concluding that it had, the court discussed Public Law
280 at length. It emphasized that as one of the mandatory Public Law 280
States, California had jurisdiction over civil causes of actions to
which Indians are parties, including domestic relations matters.

The court noted the lack of decisions regarding Public Law 280
jurisdiction, other than cases involving State court jurisdiction that
had been challenged due to an attempt to enforce the State's police
powers or to exercise the State's authority to tax property,
notwithstanding the Federal prohibition to do so in subdivision (b) of
Public Law 280. Citing an earlier California decision,[^256] the court
concluded that when a California agency has filed a civil action seeking
support pursuant to an assignment of support rights, it is acting as a
private party. "In our view it is inconceivable that Congress could have
intended that State courts not have jurisdiction to enforce the
foregoing mandates \[of Title IV-D\], especially in view of the fact
that such mandates arise only after approval of an application made to a
county welfare department for AFDC benefits of a Native American
child."[^257] Similarly, a Public Law 280 State has jurisdiction to
apply to Native American State laws on divorce.[^258] Finally, the court
noted that the defendant had voluntarily appeared and participated in
the State divorce proceedings. In the court's opinion, "there is no
question but that the trial court had the jurisdiction to make the child
support order it did." [^259]

***No Public Law 280 Jurisdiction*** *New Mexico ex rel. Dept. of Human
Servcs. v. Jojola*[^260] is a case from a State without Public Law 280
jurisdiction, in which the New Mexico Supreme Court upheld the exercise
of State court jurisdiction. The court found that the plaintiff, the
county agency that was providing public assistance to the mother, was a
non-Indian, so it considered the case as one between an Indian and
non-Indian. In conducting a *Williams* analysis, the court applied a
three-prong test: Determining (1) whether the parties were Indian or
non-Indian; (2) whether the cause of action arose within an Indian
reservation; and (3) the nature of the interest to be protected. The
court found that the parties were Indian and non-Indian, the cause arose
outside of the reservation when the mother applied for public
assistance, and there was no interference with any Tribal interest. The
court was influenced by the Congressional mandate requiring States to
seek reimbursement of public assistance.

When the non-Indian or non-member custodial parent files a support
establishment action in the court of the Tribe in which the obligor is
enrolled, the non-Indian or non-member Indian is deemed to have
consented to Tribal jurisdiction. The issue then becomes whether Tribal
law authorizes jurisdiction in such a case. If it does, and if the
Tribal court has personal jurisdiction over the Indian noncustodial
parent, the Tribal court will most likely uphold Tribal court
jurisdiction.

**[Non-Indian Custodian and Non-Indian
NonCustodian]{.underline}**[]{#__RefHeading___Toc161206459 .anchor} If
neither parent is an Indian, Public Law 280 jurisdiction is
inapplicable. If both parties reside off the reservation, the State
court has exclusive jurisdiction. If at least one of the parties resides
on the reservation but the cause of action arose off the reservation, a
State court will most likely find it has jurisdiction because there is
no infringement of Tribal interest. If the parties live on the
reservation, the non-Indian custodial parent filed the support action in
Tribal court, and the non-Indian noncustodian challenges the subject
matter jurisdiction, the Tribal court will likely focus on where the
cause of action arose and whether jurisdiction is necessary to protect
the political integrity, economic security, or health or welfare of the
Tribe.

**CHAPTER SIX**

# Table of Statutes and Authorities

######## 

######## Statutes and Regulations

Family Support Act of 1988, P.L. No. 100-485 (1988)

Public Law 280 (enacted in 18 U.S.C., 25 U.S.C., and 28 U.S.C.)

42 U.S.C. § 667(b)(2)

45 C.F.R. § 302.56

45 C.F.R. § 303.4

45 C.F.R. § 309.05

45 C.F.R. § 309.105

Tribal Child Support Enforcement Programs: Final Rule, 69 Fed. Reg.
16,638 (Mar. 30, 2004) (to be codified at 45 C.F.R. Pt. 309)

**[State Attorney General Opinion]{.underline}**

North Dakota Attorney General's Opinion 2000-F-07

**[Case Law]{.underline}**

*Montana v. United States*, 450 U.S. 544 (1981)

*Nevada v. Hicks*, 533 U.S. 353 (2001)

*Strate v. A-1 Contractors,* 520 U.S. 438 (1997)

*Williams v. Lee,* 358 U.S. 217 (1959)

*United States ex rel. Cobell v. Cobell*, 503 F.2d 790 (9^th^ Cir. 1974)

*Attikai v. Thompson, Sr.*, 21 Indian L. Reptr. 6001 (No. CV-02-02-93 N.
Pls. Intertr. Ct. App., Aug. 31, 1993)

*Billie v. Abbott*, 16 Indian L. Rptr. 6021 (Navajo Supreme Court Nov.
10, 1988)

*County of Inyo v. Jeff*, 227 Cal. App. 3d 487, 277 Cal. Rptr. 841
(1991)

*Jackson County Child Support Enforcement Agency v. Swayney,* 352 S.E.2d
413 (N.C. 1987)

*Marriage of Purnel v. Purnel*, 52 Cal. App. 4^th^ 527, 60 Cal. Rptr. 2d
667 (1997)

*McKenzie County Social Serv. Bd. v. V.G.,* 392 N.W.2d 399 (N.D. 1986)

*New Mexico ex rel. Dept. of Human Servcs. v. Jojola*, 99 N.M. 500, 660
P.2d 590 (1983)

*Rolette County Social Serv. Bd. v. B.E*., 697 N.W.2d 333 (N.D. 2005).

*State ex rel. LeCompte v. Keckler*, 628 N.W.2d 749 (S.D. 2001)

*State of Iowa, ex rel. Dept. of Human Serv. v. Whitebreast*, 409 N.W.2d
460 (Iowa 1987)

**[Periodicals/Publications]{.underline}**

None

**CHAPTER SEVEN**[]{#__RefHeading___Toc161206461 .anchor}

**MEDICAL SUPPORT ENFORCEMENT**

# State Title IV-D Requirements

**[Definition]{.underline}**[]{#__RefHeading___Toc161206463 .anchor}
Medical support is the legal provision of medical, dental, prescription,
and other health care expenses. It can include provisions to cover
health insurance costs as well as cash payments for unreimbursed medical
expenses. Child support establishment addresses the health needs of
children in three ways. First, there are Federal laws and regulations
that require the parents to provide health insurance coverage. Second,
the guideline calculation can apportion the costs not reimbursed by
health insurance to each of the parents. Finally, the guidelines can
address extraordinary medical expenses.

**[Support Guidelines]{.underline}**[]{#__RefHeading___Toc161206464
.anchor} There are three categories of medical expenses: health
insurance premiums; payment for the uninsured portion of regular medical
expenses, such as co-payments, deductibles, and uncovered expenses; and
extraordinary medical expenses.[^261] Many guidelines are silent
regarding the definition of a medical expense.

-   **Health insurance premiums**

> Federal regulations require that child support guidelines provide for
> children's health care needs through "health insurance or other
> means."[^262] Because the cost of insurance varies so greatly, it is
> not included within the basic guideline amount. Instead, most State
> guidelines treat the cost of health insurance in one of two ways. The
> most common method is to add the actual cost of health insurance to
> the basic support amount and then prorate the cost between the parents
> based on their proportion of income.[^263] The other method is to
> order one parent to pay for health insurance and then deduct that cost
> from the paying parent's income.

-   **Uninsured medical expenses**

> Uninsured medical expense encompasses a range of items that includes
> co-payments, medication costs, uncovered procedures and conditions,
> and cash payments in lieu of health insurance.

-   **Definition of medical expense -** Some States provide a definition
    of medical expenses. For example, they list treatment provided by
    medical doctors and dentists, treatment for chronic conditions and
    asthma, counseling, psychiatric treatment for mental disorders, and
    physical therapy as medical expenses.[^264]

-   **Inclusion within guideline -** Support guidelines that expressly
    address medical expenses vary in how they distinguish ordinary
    medical expenses from extraordinary medical expenses. Some States
    expressly provide that the basic support amount assumes a certain
    amount of unreimbursed medical costs. For example, the Alabama
    Schedule of Basic Child Support Obligations assumes unreimbursed
    medical costs of \$ 200 per family of four per year. These assumed
    costs include medical expenses not covered or reimbursed by health
    insurance, Medicaid, or Medicare.[^265] Many States set a threshold
    amount for what constitutes an add-on medical expense; by
    implication, medical expenses that do not meet that threshold are
    subsumed within the basic support amount. For example, in New
    Jersey, unreimbursed health care expenditures (medical and dental)
    up to and including \$250 per child per year are included in the
    schedules, which provide that "such expenses are considered ordinary
    and may include items such as nonprescription drugs, co-payments or
    health care services, equipment or products." The fact that a family
    does not incur that amount of health care expense is not a basis for
    deviating from the guidelines. Predictable and recurring
    unreimbursed health care expenses in excess of \$250 per child per
    year are added to the basic support amount. [^266] In Indiana,
    uninsured expenses in excess of 6 percent of the basic support
    obligation are considered extraordinary medical expenses resulting
    in an add-on to the basic amount. Presumably, expenses less than the
    threshold for extraordinary medical expenses are considered ordinary
    expenses that are subsumed within the basic support amount.

> Other States take the approach that the basic support amount can be
> adjusted by adding the cost of any noncovered medical, dental, and
> prescriptive medical expense.[^267]
>
> If the ordinary medical expense is subsumed within the basic support
> amount or treated as an adjustment to the amount, the expense is
> typically shared by the parents in accordance with the guideline
> formula. In contrast, Hawaii statutorily specifies that ordinary
> uninsured medical and dental expenses are the responsibility of the
> custodial parent.[^268]

-   **Extraordinary medical expenses**

> Extraordinary medical expenses are those expenses that extend beyond
> the ordinary expectation of medical need in a family, as contemplated
> by most State guidelines formulas.

-   **Definition -** Numerous States define "extraordinary medical
    expenses."[^269] There seem to be several approaches, the most
    common of which is to define extraordinary medical expenses as
    unreimbursed medical expenses that exceed a certain amount per child
    per calendar year.[^270] The next most common approach is to define
    extraordinary medical expenses as uninsured expenses in excess of
    \$100 for a single illness or condition.[^271] A third approach is
    to define extraordinary medical expenses as uninsured expenses that
    exceed a certain percentage of the basic obligation.[^272]

> Sometimes States combine a threshold amount with an illustrative list
> of types of qualifying expenses. Examples include Colorado, Kentucky,
> and Maine.
>
> Other States do not use the phrase "extraordinary medical expenses."
> They do, however, recognize an adjustment for certain unreimbursed
> medical expenses. Like those States that do expressly address
> extraordinary medical expenses, they usually establish a threshold
> based on a certain dollar amount per child per calendar year.[^273]

-   **Inclusion within guideline -** No State support guideline includes
    extraordinary medical expenses within the basic support amount. Such
    expenses are usually the basis for a deviation from the basic
    support amount or an add-on to the guideline amount.[^274]

**[Health Insurance
Coverage]{.underline}**[]{#__RefHeading___Toc161206465 .anchor} Federal
law and regulations require States to provide for children's health
needs by obtaining health insurance or by other means.[^275] Current
regulations require State IV-D agencies to secure medical support
information and to obtain and enforce medical support in the form of
health care coverage from the noncustodial parent, when such coverage is
available at a reasonable cost.[^276] Health insurance is considered
reasonable in cost if it is employment related or other group health
insurance, regardless of the service delivery mechanism.[^277]

To remove some of the impediments to obtaining medical coverage,
Congress enacted the Omnibus Budget Reconciliation Act of 1993 (OBRA
'93),[^278] which:

-   prohibited discriminatory health care coverage practices;

-   created "qualified medical child support orders" (QMCSOs)[^279] to
    obtain coverage from group plans subject to ERISA;[^280] and

-   allowed employers to deduct the cost of health insurance premiums
    from an employee's income.

In 1996, the Personal Responsibility and Work Opportunity Reconciliation
Act (PRWORA)[^281] amended the Social Security Act to require States, as
a condition of receiving Federal funds, to enact a provision for health
care coverage in all orders established or enforced by the IV-D
agency.[^282] Before PRWORA, the requirement to seek health insurance
coverage had been mandatory for public assistance cases, while nonpublic
assistance IV-D applicants could opt not to have medical support
established and enforced.

Because health care costs remained problematic, Congress again addressed
medical support in 1998. Provisions in the Child Support Performance and
Incentives Act of 1998 (CSPIA)[^283] were enacted to eliminate barriers
to establishing and enforcing medical support coverage. CSPIA requires
State IV-D agencies to enforce health care coverage by use of a National
Medical Support Notice (NMSN). Implementing Federal regulations are at
45 C.F.R. § 303. A parallel regulation, developed by the Department of
Labor, adopts the use of the NMSN under ERISA.[^284] CSPIA also
established the Medical Child Support Working Group, which was required
to submit a report to the Secretaries of HHS and Labor recommending
measures to improve health care coverage.[^285] The resulting report
contains 76 recommendations that would expand health care coverage for
children in the IV-D system.[^286]

**[National Medical Support
Notice]{.underline}**[]{#__RefHeading___Toc161206466 .anchor}

The standardized NMSN complies with ERISA's informational requirements
and restrictions[^287] and with Title IV-D requirements. It also
contains a severable employer withholding notice to advise the employer
of:

-   State law applicable to the requirement to withhold;

-   the duration of withholding;

-   limitations on withholding, such as the Consumer Credit Protection
    Act;

-   prioritization under State law for withholding child support and
    medical support, if insufficient funds are available for both; and

-   the name and phone number for the appropriate division of the State
    IV-D agency handling the withholding.[^288]

The NMSN notifies the parent's employer of the provision for health care
coverage for the child. In addition, if the NMSN is properly completed
and satisfies ERISA's conditions, it constitutes a QMCSO as defined by
ERISA.[^289] The intent is to simplify the processing of cases for
employers.

States must mandate the use of the NMSN in all cases in which the
noncustodial parent is required to provide health care coverage and that
parent's employer is known.[^290] There is an exception to using the
NMSN if the order stipulates that alternative health care coverage must
be provided.

Federal regulations[^291] require States to have the following
procedures:

-   The NMSN must be used to notify employers of a health care coverage
    order;

-   The NMSN must be transmitted to an employer within 2 business days
    from entry of the individual in the State Directory of New Hires;

-   The employer must transmit the NMSN to the health coverage provider
    within 20 business days of the date of the NMSN and must withhold
    contributions and send them to the plan;

-   The NMSN can be contested based on mistake of fact;

-   The employer must notify the IV-D agency upon termination of the
    parent's employment; and

-   The IV-D agency must notify the employer when the order becomes
    ineffective and must work with the custodial parent to choose a plan
    when options for coverage exist.

# Tribal Title IV-D Requirements

There is no current requirement that Tribal support orders include
medical support. However, there is no prohibition for a Tribal support
order to do so. Tribes are encouraged to make sure that children have
access to medical care through the Indian Health Service (IHS) or
otherwise.[^292] The IHS is an agency of the United States Public Health
Service, within the Department of Health and Human Services. It does not
provide health insurance coverage. However, it is responsible for
providing Federal health services to the approximately 1.5 million
American Indians and Alaska Natives who belong to the more than 562
Federally recognized tribes in 35 States.

As of October 1998, the Federal system consisted of 37 hospitals, 59
health centers, 44 health stations, and four school health centers.
American Indians and Alaska Natives, who are enrolled members of their
Tribe and who reside within the service delivery area of an IHS
facility, can access the services with no out-of-pocket charge. However,
State child support workers need to be aware that Tribal members may not
live near an available IHS facility. Also, lack of IHS funds may result
in some Tribes requiring the Tribal member to use private insurance or
Medicaid prior to IHS services.

Although there is no requirement for Tribes to include medical support
in the establishment or modification of a support order, to the extent
that the Tribe is enforcing a valid State support order pursuant to the
Full Faith and Credit for Child Support Orders Act, it must also enforce
any provision within the State support order concerning health care
coverage.[^293] If the State order requires the father to repay Medicaid
costs associated with birthing costs, issues regarding the Federal
government's trust responsibility to provide health care to Native
Americans and Alaska Natives may arise.[^294]

**\[page deliberately left blank\]**

**CHAPTER SEVEN**

# Table of Statutes and Authorities

######## 

######## Statutes and Regulations

Child Support Performance and Incentives Act of 1998, P.L. No. 105-200
(1998)

Consumer Credit Protection Act, P.L. No. 90-321 (1969), codified as
amended at 15 U.S.C. §§ 1601 *et seq*.

Employee Retirement Income Security Act (ERISA), P.L. No.93-406 (1974)

Full Faith and Credit for Child Support Orders Act, P.L. No. 103-383
(1994), codified at 28 U.S.C. § 1738B

Omnibus Budget Reconciliation Act of 1993, P.L. No. 103-66 (1993)

Personal Responsibility and Work Opportunity Reconciliation Act, P.L.
No. 104-193 (1996)

Title IV-D of the Social Security Act, P.L. No. 93-647 (1975), codified
at 42 U.S.C. §§ 651 *et seq*.

15 U.S.C. §§ 1601 *et seq*.

28 U.S.C. § 1738B

29 U.S.C. § 1169(a)

42 U.S.C. § 652(f)

42 U.S.C. § 666(a)(19)

29 C.F.R. § 2590

45 C.F.R. § 302.56(c)(3)

45 C.F.R. § 302.80

45 C.F.R. § 303.30

45 C.F.R. § 303.31

45 C.F.R. § 303.32

Tribal Child Support Enforcement Programs: Final Rule, 69 Fed. Reg.
16,638 at 16,641 (Mar. 30, 2004) (to be codified at 45 C.F.R. Pt. 309)

Ala. R. Jud. Admin. 32 (2001)

Fla. Stat. Ann. § 61.30(8) (2005)

Hawaii Family Court Child Support Guidelines, Instructions (1998)

N.J.Ct. R., Appendix IX-A (2005)

######## Case Law

None

**[Periodicals/Publications]{.underline}**

C. Barbero, The Federal Trust Responsibility: Justification for
Indian-Specific Health Policy (2005).

Elrod, *Adding to the Basic Support Obligation*, in Guidelines: The Next
Generation [(M.]{.smallcaps} Haynes, ed., U.S. Dept. of Health & Human
Serv. 1994).

L. Morgan, Child Support Guidelines: Interpretation and Application
(Aspen Law and Business, Supp. 2000).

National Medical Child Support Working Group, *21 Million Children's
Health: Our Shared Responsibility* (2002). See
http://www.acf.dhhs.gov/programs/cse/rpt/medrpt/index.html.

Notar & Schmidt, *State Child Support Guideline Treatment of Children's
Health Care Needs*, in Guidelines: The Next Generation [(]{.smallcaps}M.
Haynes, ed. U.S. Dept. of Health & Human Serv. 1994).

**CHAPTER EIGHT**[]{#__RefHeading___Toc161206469 .anchor}

**MODIFICATION OF SUPPORT**

Support orders that were fair when initially issued pursuant to support
guidelines do not usually remain so with the passage of time. The
financial circumstances of the parents change; the necessity for
childcare might be eliminated; the costs of food, clothing, medical
care, and school increase or decrease.

# State Title IV-D Requirements 

Federal law requires a State, as a condition of receiving Federal IV-D
funds, to have laws and procedures providing for a review of IV-D
support orders at least once every three years at the request of either
party or, in an assistance case, at the request of the State.[^295]
States can establish a reasonable quantitative standard based on either
a fixed dollar amount or percentage, or both, as a basis for determining
whether an inconsistency between the existing child support award amount
and the guideline amount is adequate grounds for petitioning for
adjustment of the order. States may also adopt procedures for three-year
reviews that do not require a change in circumstances or a percentage of
difference from the prior order.[^296] States can use any of three
different methods for the review:

-   Child support guidelines;[^297]

-   Application of a cost-of-living adjustment in accordance with a
    formula developed by the State;[^298] or

-   Use of automated methods to identify orders eligible for review,
    conduct the review, identify orders eligible for adjustment, and
    apply the appropriate adjustment under any threshold that might be
    established by the State.[^299]

If child support guidelines are not used, either parent must be allowed
to contest the adjustment.[^300] Implementing Federal regulations also
provide that addressing a child's health care needs in an order, through
health insurance or other means, must be an adequate basis under State
law to petition for an adjustment of the order, regardless of whether an
adjustment in the amount of child support is necessary.[^301]

# Tribal Title IV-D Requirements 

Pursuant to Federal regulation, the initial Tribal application for Title
IV-D funding must include a statement identifying how the Tribe or
Tribal organization will operate a IV-D program that meets the
objectives of Title IV-D. Among the objectives that the Tribal IV-D plan
must address is the modification of support orders.[^302] Beyond that
general requirement, there are no Federal regulations detailing
modification procedures that a Tribe must provide.

A Tribal court will apply Tribal law in a modification action. Whether
an administrative agency could modify a judicial support order was the
issue in *Esther Bedoni v. Navajo Nation Office of Hearings and
Appeals*.[^303] The court concluded that under the Navajo Nation Child
Support Enforcement Act, the Office of Hearings and Appeals could only
modify its own administrative orders. The Tribal trial court maintained
jurisdiction to modify trial court orders.

# InterState/Intergovernmental Cases 

States, as a condition of receiving Federal IV-D funding, are required
to enact the 1996 Uniform InterState Family Support Act (UIFSA).[^304]
Tribes are [not]{.underline} required to enact UIFSA. On the other hand,
both States and Tribes are subject to the Federal Full Faith and Credit
for Child Support Orders Act (FFCCSOA).[^305] Like UIFSA, FFCCSOA sets
limits on when a "State" is permitted to modify another State's support
order. The Act defines "State" to include "Indian country (as defined in
section 1151 of title 18)."[^306] Therefore, both States and Tribes
should be applying consistent rules regarding when another
jurisdiction's support order can be modified. Those rules[^307] are
outlined below:

-   If there is only one support order and an individual party or child
    resides in the issuing State, that State has continuing, exclusive
    jurisdiction to modify.

-   If there is only one support order and no party or child lives in
    the issuing State, the party seeking modification must register the
    order for modification in a State -- other than his or her own --
    that has personal jurisdiction over the nonmovant.

-   If there is more than one support order entitled to recognition and
    more than one State can claim continuing, exclusive jurisdiction,
    the tribunal must determine the controlling order.[^308] The State
    that issued the controlling support order is the State with
    continuing, exclusive jurisdiction to modify.

-   If there is more than one support order entitled to recognition and
    no issuing State can claim continuing, exclusive jurisdiction, a
    tribunal with jurisdiction over both parties must issue a new
    support order, which becomes the controlling order in the case.

One Alaska Native commenter to the proposed final rule on Tribal child
support enforcement programs stated that Tribal court jurisdiction does
not mesh with FFCCSOA when there is no geographic region from which to
determine whether the parent or child resides "in the State" for
purposes of CEJ or a controlling order determination. The Federal
response was that "FFCCSOA does not limit the exercise of jurisdiction
to a geographical area. FFCCSOA only requires a court exercising
jurisdiction to have the authority to do so."[^309]

**\[page deliberately left blank\]**

**CHAPTER EIGHT**

# Table of Statutes and Authorities

######## 

######## Statutes and Regulations

Balanced Budget Act of 1997, P.L. No. 105-33 (1997)

Full Faith and Credit for Child Support Orders Act, P.L. No. 103-383
(1994), codified at 28 U.S.C. § 1738B

Personal Responsibility and Work Opportunity Reconciliation Act, P.L.
No. 104-193 (1996)

28 U.S.C. § 1738B

42 U.S.C. § 666(a)(10)

42 U.S.C. § 666(f)

45 C.F.R. § 303.8

45 C.F.R. § 309.15

45 C.F.R. § 309.90

Tribal Child Support Enforcement Programs: Final Rule, 69 Fed. Reg.
16,638 (Mar. 30, 2004) (to be codified at 45 C.F.R. Pt. 309)

UIFSA (1996), 9 Pt. 1B U.L.A. 235 (1999)

UIFSA (2001), 9 Pt. 1B U.L.A. \_\_ (Supp. 2001)

Section 105 of UIFSA (1996) and (2001)

Section 207 of UIFSA (1996) and (2001)

######## 

######## 

######## Case Law

*Esther Bedoni v. Navajo Nation Office of Hearings and Appeals*, No.
SC-CV-13-02 (Supreme Court of the Navajo Nation Sept. 3, 2003)

######## Periodicals/Publications

None

**\[page deliberately left blank\]**

**CHAPTER NINE**[]{#__RefHeading___Toc161206474 .anchor}

**SUPPORT ENFORCEMENT**

Once a court or agency has entered a support order with proper subject
matter and personal jurisdiction, the order is enforceable. Both State
and Tribal IV-D programs must provide enforcement services to their
customers.

# Enforcement Remedies

State and Tribal laws provide a variety of enforcement remedies. Some
actions are directed against particular assets, such as personal or real
property, and require that the court or agency have jurisdiction over
the property. Such jurisdiction is called *in rem* jurisdiction, which
is Latin meaning jurisdiction over the *res*, or thing. Other
enforcement remedies are directed against the person, such as civil
contempt or criminal prosecution. Those remedies require *in personam*
jurisdiction, which is jurisdiction over the person. Federal law does
not address jurisdictional requirements. However, Federal law does
require that States and Tribes have certain types of remedies available
to enforce support orders, in order to receive Federal IV-D funding.
States and Tribes may have and use enforcement remedies in addition to
the ones discussed below.

**[State Title IV-D
Requirements]{.underline}**[]{#__RefHeading___Toc161206476 .anchor}
Certain enforcement remedies are available exclusively to State IV-D
agencies. Other remedies are available to any child support
tribunal,[^310] as well as to private attorneys and collection agencies.
Some always involve court action; others are administrative in nature,
requiring little or no court action. Determining correct remedies is
case-specific. Thus, the facts, coupled with Federal and State mandates,
dictate how a IV-D caseworker should proceed to enforce the particular
support order. The following list highlights enforcement remedies that a
State must have in order to receive Federal IV-D funding.

-   **Income Withholding**

The most effective child support enforcement tool is income withholding,
a procedure by which automatic deductions are made from wages or other
income. Once initiated, income withholding can keep support flowing to
the family on a regular basis. Today, any child support order issued or
modified in a State, regardless of whether the case is a IV-D case, must
contain a provision for income withholding.[^311] Additionally,
immediate withholding is required in all IV-D cases that have an order
issued or modified on or after November 1, 1990.[^312] The exceptions to
immediate withholding are very limited. The Family Support Act of
1988[^313] carved out a "good cause" exception to immediate income
withholding. That exception requires the tribunal to approve a written
agreement executed between the custodial parent and the noncustodial
parent for an alternative payment arrangement. The tribunal must make a
finding that implementing immediate income withholding would not be in
the best interest of the child and require some proof, if the order is
being modified, that previously ordered support was paid in a timely
manner.[^314]

PRWORA brought about several additional changes to income withholding.
For instance, different types of income, not just wages, are now subject
to withholding.[^315] Additionally, State agencies must have
administrative authority to initiate income withholding. PRWORA also
required the States to adopt UIFSA[^316] and its direct income
withholding provision. Under UIFSA, income withholding can be initiated
in one State, and sent directly to an employer in another State, without
involving a tribunal or the IV-D agency in either State.[^317] Direct
income withholding is available in all interState cases, including those
handled by private attorneys.

In IV-D cases in which income withholding is not immediate, including
those cases whose order predates the statutory date of November 1, 1990,
and cases in which the court has found good cause, an income withholding
must be initiated when the support owed is at least equal to one month's
support amount.[^318] Additionally, the noncustodial parent can request
that income withholding be initiated or the State IV-D agency can
determine, after request by the custodial parent, that income
withholding would be appropriate.[^319] In cases involving income
withholding that is initiated rather than immediate, the noncustodial
parent is entitled to notice. Should the noncustodial parent wish to
contest the withholding, the only issue that the tribunal should
consider is a mistake of fact (i.e., an incorrect amount or the
incorrect individual).[^320]

The National Directory of New Hires (NDNH) interacts with the Federal
Case Registry (FCR), which contains information about persons in child
support cases being handled by State IV-D agencies. These two databases
compare their data and, when a match occurs, the NDNH provides the
appropriate State with information concerning the noncustodial parent.
That information can be used by the State to initiate an income
withholding notice to the noncustodial parent's employer. OCSE has
issued a standardized *Order/Notice to Withhold Income for Child
Support*, which must be used for all child support orders.[^321]

-   **Judgments**

The Omnibus Budget Reconciliation Act of 1986[^322] provided that all
support orders must be entitled to judgment status. Further amendments
to the Social Security Act have made it a State requirement that unpaid
support installments become a judgment by operation of law, entitled to
full faith and credit by States, and not subject to retroactive
modification.

-   **Liens and Levy**

Federal law requires States, as a condition of receiving Federal funds,
to provide that a lien, in the amount of overdue support, arises by
operation of law against a noncustodial parent's real and personal
property.[^323] Methods for creating, and executing on, the liens are
subject to State law. Federal law also requires States to give full
faith and credit to the lien of another State, as long as "the State
agency, party, or other entity seeking to enforce such a lien complies
with the procedural rules relating to recording or serving liens that
arise within the State\[.\]"[^324] To increase recognition of sister
State liens, Congress required States to impose liens using standardized
forms beginning March 1, 1997.[^325]

-   **Federal Tax Refund Intercept**

States, as a condition of receiving Federal funds, are required to
submit qualifying IV-D cases for Federal income tax refund offset. Note
that current Federal law does not allow a State to release tax
information to a Tribal IV-D agency.[^326] Tribes and States may enter
into agreement to refer Tribal cases to the State for submittal for
Federal income tax refund offset. Any such access would currently also
require a request for State IV-D services. However, there is nothing to
preclude an individual from applying for and receiving services from
both a State and Tribal IV-D agency.[^327]

-   **Financial Institution Data Match (FIDM)**

FIDM is a means of locating certain obligor assets, which later can be
levied to fulfill the unpaid support amount. These assets include demand
deposit accounts, checking accounts or negotiable withdrawal order
accounts, savings accounts, time deposit accounts and money-market
mutual fund accounts. As provided in PRWORA, a State IV-D agency, as a
condition of receiving Federal IV-D funding, must establish agreements
with financial institutions to perform data match exchanges, in which
account information is matched against a list of delinquent
obligors.[^328] After identifying accounts owned by the obligor, the
State IV-D agency, consistent with State law, can seek to attach these
assets and seize them to satisfy delinquent support debts.

The Child Support Performance and Incentive Act of 1998[^329] amended
the FIDM process to authorize OCSE to act as a conduit between States
and multiState financial institutions to facilitate a centralized,
quarterly data match.

-   **State Income Tax Refund Offset**

Any State that has an income tax must, in order to receive Federal IV-D
funding, have enacted a statute authorizing the State revenue agency to
withhold income tax refunds due individuals who owe a child support
debt. The procedure is nearly identical to the Federal tax refund offset
procedure. The State revenue agency performs a role similar to the
IRS.[^330]

-   **License Revocation**

As a condition of receiving Federal IV-D funds, a State must have
procedures regarding the withholding, suspension, or restriction of the
licenses of noncustodial parents who owe past due support. Specifically,
the mandate relates to drivers' licenses, professional and occupational
licenses, as well as recreational and sporting licenses.[^331] Licenses
can be affected when the noncustodial parent meets established criteria
or fails to comply with subpoenas or warrants related to child support
proceedings. Appropriate notice is required. Use of these procedures is
not mandated in every case, but must be available at the State's
discretion.

-   **Consumer Reporting Agencies**

PRWORA required the States, as a condition of receiving Federal funds,
to institute measures to periodically report unpaid child support to
credit bureaus.[^332]

-   **Posting Bonds**

The Child Support Enforcement Amendments of 1984 required States, as a
condition of receiving Federal funds, to enact and use "procedures which
require that a noncustodial parent give security, post a bond, or give
some other guarantee to secure payment of overdue support, after notice
has been sent to such noncustodial parent of the proposed action, and of
the procedures to be followed to contest it (and after full compliance
with all procedural due process requirements of the State)."[^333]

**[Tribal Title IV-D
Requirements]{.underline}**[]{#__RefHeading___Toc161206477 .anchor}
Tribes that do not receive Federal funding for their child support
programs must provide full faith and credit to valid child support
orders, but are not subject to Federal requirements governing specific
enforcement remedies. Like States, Tribes that receive Federal funding
to operate Tribal IV-D programs are subject to Federal regulations that
require the enforcement of support orders. However, unlike States, the
only mandated enforcement remedy is income withholding.

-   **Income Withholding**

The income withholding requirements for Tribes operating Federally
funded IV-D programs are similar to those requirements governing State
IV-D programs. Tribal laws must require amounts to be withheld for both
current support and any arrears.[^334] Tribal IV-D agencies are required
to use the Federal standardized income withholding notice.[^335] Like
States, Tribes cannot exceed, but may set lower income withholding
limits than the Consumer Credit Protection Act.[^336] Employers who
discriminate due to withholding must be subject to a fine. Where there
are multiple withholding orders for the same obligor, the Tribal IV-D
agency must allocate withheld amounts to ensure that each order receives
some amount of current support.[^337] Tribal law must provide for a fine
if the employer discharges an employee due to withholding.[^338]

There is an important exception, however. Tribes are not required to
have immediate income withholding. In promulgating the final rule, OCSE
noted that many of the comments it had received from Tribes to the
proposed rule indicated that other methods of collecting support -- such
as bringing the noncustodial parent before Tribal elders \-- were more
effective than income withholding.[^339] Therefore, Federal regulations
governing Tribal IV-D programs require that income be subject to
withholding once the noncustodial parent has failed to make support
payments equal to one month's amount of support.[^340]

The regulations also provide for an exception to income withholding when
either parent demonstrates, and the tribunal enters a finding, that
there is good cause not to require income withholding; or a signed
written agreement is reached between the custodial and noncustodial
parent that provides for an alternate agreement.[^341] A Tribal IV-D
agency must receive and process income withholding orders from State or
other Tribes and ensure such orders are promptly served on
employers.[^342] However, because Tribes are not required to enact
UIFSA, Tribal employers or Tribally-owned businesses are not required to
honor direct income withholding orders. Tribes may choose to require
employers to honor direct withholding requests, but the enactment of
such a law is not mandated.[^343]

Federal regulations leave it to Tribal law to determine what type of
income can be withheld for child support enforcement.[^344] "For
purposes of this regulation, we \[the Federal Office of Child Support
Enforcement\] have defined income at 309.05, to mean any periodic form
of payment due to an individual, regardless of source, except that the
exclusion of per capita, trust or Individual Indian Money (IIM) payments
must be expressly decided by a Tribe. This allows Tribes the flexibility
to exclude specific categories of payments from this definition,
including per capita payments, trust income, and gaming profit
distributions. We have not required Tribes to withhold the Tribal
benefits (casino profits, oil and mineral rights) of obligors. . . . In
respect for Tribal sovereignty, we have determined that it is not
appropriate in this regulation to directly affect Tribal management of
Tribes' own resources."[^345]

# Recognition of Judgments

**[Full Faith and Credit]{.underline}**[]{#__RefHeading___Toc161206479
.anchor} The United States Constitution requires that States give full
faith and credit to the "Public Acts, Records, and Judicial Proceedings
of every other State."[^346] Because of their dependent sovereign
status, Tribes are not bound by the Full Faith and Credit Clause of the
Constitution.[^347] Nor has Congress required Federal and State courts
to give full faith and credit to all Tribal court decisions.[^348]
However, it has required full faith and credit in three specific areas:
domestic violence orders (18 U.S.C. § 2265), child custody orders (25
U.S.C. § 1911(d)), and child support (28 U.S.C. § 1738B). In 1994,
Congress enacted the Full Faith and Credit for Child Support Orders Act
(FFCCSOA),[^349] which specifically applies to Indian country (as
defined by 18 U.S.C. § 1151), as well as States of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, and U.S.
territories and possessions.[^350] The Act requires the appropriate
parties of such jurisdictions to:

-   enforce according to its terms a child support order[^351] made
    consistently with FFCCSOA by a court or agency of another State; and

-   not seek or make a modification of such an order except in
    accordance with FFCCSOA.

    Therefore, Tribes and States must recognize and enforce each other's
    valid child support orders, i.e., orders entered with appropriate
    subject matter and personal jurisdiction.[^352] There is no Federal
    directive regarding how such recognition must occur. Many Tribes use
    a registration process for enforcement purposes under FFCCSOA.

**[Comity]{.underline}**[]{#__RefHeading___Toc161206480 .anchor} Comity
between sovereigns is a voluntary, rather than mandated, recognition of
each other\'s judgments and decrees:

\"\[c\]omity\", in the legal sense, is neither a matter of absolute
obligation on the one hand, nor a mere courtesy and good will upon the
other. But it is the recognition which one nation allows within its
territory to the legislative, executive or judicial acts of another
nation, having due regard both to international duty and convenience,
and to the rights of its own citizens or of other persons who are under
the protection of the laws.[^353]

Whereas FFCCSOA only addresses valid child support orders, a basis for
States and Tribes to recognize each other's paternity adjudications is
the doctrine of comity. Some States have specific statutes outlining
when comity is appropriate. For example, South Dakota provides that
before a State court may consider recognizing a Tribal court order or
judgment, the party seeking recognition must establish by clear and
convincing evidence that:

\(a\) The Tribal court had jurisdiction over both subject matter and the
parties;

\(b\) The order or judgment was not fraudulently obtained;

\(c\) The order or judgment was obtained by a process that assures the
requisites of an impartial administration of justice including, but not
limited to, due notice and a hearing;

\(d\) The order or judgment complies with the laws, ordinances and
regulations of the jurisdiction from which it was obtained; and

(e) The order or judgment does not contravene the public policy of the
    State of South Dakota.[^354]

In *Smith v. Scott*,[^355] the Mashantucket Pequot Tribal Court used the
doctrine of comity to recognize and enforce a Connecticut money judgment
for damages in a sexual abuse case. In deciding whether a particular
judgment is to be recognized and enforced through comity, the Tribal
court set forth several requirements that must be met. First, comity
will not apply unless there is reciprocal recognition of judgments,
i.e., the other sovereign -- here the State of Connecticut -- must
recognize judgments of the Mashantucket courts. Second, the foreign
judgment must not contravene the public policy of the Tribe. Finally,
the foreign judgment must have been issued by a court of competent
jurisdiction in the foreign jurisdiction.

# Enforcement of Tribal Support Order 

The following discussion focuses on enforcement of a Tribal support
order. It assumes that it is a valid support order, with appropriate
subject matter and personal jurisdiction.

**[Obligor (Indian or Non-Indian) Resides and Works on
Reservation]{.underline}**[]{#__RefHeading___Toc161206482 .anchor}

When the obligor resides and works on the reservation, Tribal courts may
enforce the support order through a variety of means. The following
remedies are common under Tribal codes:

-   an ongoing assignment of part of the obligor\'s periodic earnings or
    trust income;

-   an order to withhold and pay money due;

-   contempt;[^356] and

-   lien and execution on property.

    As noted earlier, Tribes operating Federally funded IV-D programs
    must provide for enforcement by income withholding. A non-Tribal
    employer operating on the reservation must honor a Tribal income
    withholding order. By entering into "consensual relations" with the
    Tribe "through commercial dealings," the non-Indian employer is
    subject to Tribal jurisdiction.[^357]

    Tribal courts also often invoke non-punitive enforcement remedies,
    such as dispute resolution or admonishment by Tribal elders.

> **[Obligor (Indian or non-Indian) Resides on Reservation but Works off
> Reservation]{.underline}**[]{#__RefHeading___Toc161206483 .anchor}

When the obligor resides on a reservation but works off the reservation,
the Tribal IV-D agency can enforce the order by sending an income
withholding order directly to the off-reservation employer. Although
Tribes are not required to enact UIFSA as a condition of receiving
Federal IV-D funds, States are. Therefore, each State has enacted UIFSA,
which requires an employer to honor direct income withholding
orders/notices sent by States or Tribes. The Tribal court may also
enforce the support order by contempt since it continues to have
personal jurisdiction over the obligor.[^358] Assuming Tribal code
authority, the support order can be enforced against any property the
obligor may own on the reservation.

The Tribal IV-D agency can also ask the State court or administrative
agency to recognize and enforce the Tribal support order pursuant to the
FFCCSOA. The State court or agency will then use State law to enforce
the Tribal support order. This may be particularly effective if the
obligor owns property off the reservation.

The Tribal support order can also be registered in a State court
pursuant to UIFSA. Because UIFSA defines "State" to include Indian
Tribes, a support order issued by a Tribe is enforceable in the State as
soon as it is registered for enforcement; there is a presumption that
the registered order is valid. If the obligor wishes to challenge the
validity of the registered order, he or she must do so within the 20-day
time limit for raising a challenge. At least one State court has held
that a motion to vacate a Tribal support order based on lack of personal
jurisdiction is a defense to registration that must be raised within the
20-day time period or it is waived.[^359]

# Enforcement of State Support Order

The following discussion focuses on enforcement of a State support
order. It assumes that it is a valid support order, with appropriate
subject matter and personal jurisdiction.

**[Obligor (Indian or non-Indian) Resides and Works off
Reservation]{.underline}**[]{#__RefHeading___Toc161206485 .anchor}

Whether or not the obligor is an Indian, so long as he or she resides
and works off the reservation, the State court may enforce its support
order just as it would enforce a support order involving non-Indian
parties.

**[Indian Obligor Resides and Works on
Reservation]{.underline}**[]{#__RefHeading___Toc161206486 .anchor}

The State court may attempt to enforce its order by a contempt
proceeding against the obligor. However, service of process on the
obligor must be valid. See the discussion on Service of Process, herein.

The State agency may also seek enforcement of the order by income
withholding. UIFSA requires that an employer honor a direct income
withholding request. However, as noted earlier, no Tribe has enacted
UIFSA nor is there a requirement that Tribes receiving Federal IV-D
funding do so. Therefore, an employer in Indian country is not required
to honor a State-issued direct income withholding request unless Tribal
law so provides. If the Indian obligor works on a reservation where the
Tribe receives Federal IV-D funding, the State agency can forward the
State income withholding order to the Tribal IV-D agency for processing.
Pursuant to 45 C.F.R. § 309.110(n), the Tribal IV-D agency must receive
and process income withholding orders from the State or other Tribes and
ensure that such orders are promptly served on employers.

It is unlikely that a State agency can seek enforcement of an arrearage
judgment by sending a State garnishment order directly to the obligor's
employer, if that employer is located on a reservation. Courts have
found such action an unlawful infringement on Tribal sovereignty.[^360]
Both *Joe v. Marcum* and *Begay v. Roberts* involved Indian defendants
who had incurred commercial debts with non-Indians off the reservation.
In each case, the non-Indian entity obtained money judgments, which it
then attempted to enforce by writs of garnishments against the Indian's
employer, which was located on the reservation. In *Joe v. Marcum*, the
employer was a Delaware incorporated business, which operated a strip
mine and maintained its offices exclusively on the reservation. The writ
of garnishment was served on the reservation. The Federal court
concluded that to permit the State court of New Mexico to run a
garnishment against an employer, on the reservation, and attach wages
earned by an Indian for on-reservation labor, "would thwart the Navajo
policy not to allow garnishment. Such impinges upon Tribal
sovereignty."[^361]

In contrast, although the defendant in *Begay v. Roberts* worked on the
reservation, his employer was a political subdivision of the State of
Arizona, with offices Statewide. The writs were served on the employer
at one of its offices off the reservation. Begay argued that although
the State court may have had jurisdiction to enter the judgments against
him, it did not have jurisdiction to garnish his wages because he was an
Indian who lived and worked on the Navajo reservation. The garnishee
maintained that, because the employer issued the wages off the
reservation, the State court had jurisdiction to garnish them. In its
decision, the Arizona Court of Appeals emphasized that it did not matter
that, under other circumstances, the employer was subject to the
jurisdiction of the Arizona courts: "Because Begay is a Navajo Indian
living and working on the reservation, . . . this case cannot be decided
without considering the Indian law implications. The fact that the
transaction resulting in the underlying actions occurred off the
reservation does not eliminate these implications, although it may be a
factor to consider."[^362] The court used the preemption and
infringement analysis set forth in *Williams v Lee.*[^363] It concluded
that "the garnishment of a reservation Indian's wages earned on the
reservation is preempted and infringes on Navajo Tribal sovereignty."

Several factors were key to the court's holding. First, it stated that
the Navajo Treaty of 1868 had been interpreted consistently to preclude
State court jurisdiction over Navajos living on the reservation. Second,
although the garnishment in this case took place physically off the
reservation, unlike the garnishment in *Joe v. Marcum*, it did not
believe that such a distinction affected the result; just as in *Joe v.
Marcum*, the effect of the garnishment would reduce Begay's income and
thus threaten or have a direct effect on the "health and welfare of the
tribe," citing *Montana v. United States*.[^364] Third, the State action
of issuing a writ of garnishment against an Indian's wages, which were
earned on the reservation, infringed upon Navajo Tribal sovereignty
because the Navajo Tribal Code did not provide for enforcement of
judgments by garnishment. Rather, the Navajo Tribe had chosen to provide
alternative remedies for the enforcement of judgments against
reservation Indians.

The State IV-D agency may seek recognition and enforcement of the order
pursuant to FFCCSOA. Tribes within Indian country are required to give
full faith and credit to valid State child support orders. Once a State
support order is recognized under FFCCSOA, the Tribal court can use
enforcement methods that are available under Tribal law.

If the State has complete Public Law 280 jurisdiction over domestic
matters, the State IV-D agency can probably also seek enforcement
against any nontrust property[^365] that is owned by the Indian obligor
and located within the State, including personalty.[^366]

**[Indian Obligor Resides on Reservation but Works off
Reservation]{.underline}**[]{#__RefHeading___Toc161206487 .anchor}

The State agency may attempt to enforce the State child support order by
a contempt proceeding against the obligor. To avoid jurisdictional
issues, the agency should serve the Indian obligor while he or she is
working off reservation. The State agency can also enforce the order
against any personal or real property that the obligor owns off the
reservation.

When the obligor derives income off the reservation, the State IV-D
agency can seek enforcement of the State support order by income
withholding against the off-reservation income. A case in point is
*First v. State*.[^367] Applying a preemption/infringe- ment test, the
Montana Supreme Court found no Federal preemption to State enforcement
against off-reservation income and no unlawful infringement on the right
of reservation Indians to make their own laws and be ruled by them. It
therefore upheld State administrative income withholding against
off-reservation income (unemployment benefits), payable to an enrolled
Tribal member living on the reservation, as a means to enforce a State
child support order. The court held that State court jurisdiction did
not violate Federal law, but actually promoted Federal law regarding the
Title IV-D child support program. It also concluded that since the
Tribal code only addressed support enforcement against on-reservation
income and was silent on enforcement against off-reservation income,
Montana's assertion of subject matter jurisdiction did not interfere
with Tribal sovereignty. It noted that although the purpose of the
income withholding was to enforce a child support obligation, it was a
collection action and therefore "not an area dominated by Tribal
tradition and custom."[^368]

If the obligor is a Federal employee, the Federal government has the
authority to withhold wages for child support, regardless of American
Indian/American Native membership, residency, or employment on a
reservation.[^369]

If the obligor owns property on the reservation against which the
support order may be enforced, the State IV-D agency may ask the Tribal
court to recognize and enforce the State support order pursuant to the
FFCCSOA. The Tribal court would then use Tribal law to enforce the State
support order.

**[Indian Obligor Resides Off Reservation but Works on
Reservation]{.underline}**[]{#__RefHeading___Toc161206488 .anchor}

The State agency may attempt to enforce the State child support order by
a contempt proceeding against the obligor. To avoid jurisdictional
issues, the agency should serve the Indian obligor while he or she is
off reservation. The State agency can also enforce the order against any
personal or real property that the obligor owns off reservation.

The State agency may also seek enforcement of the order by income
withholding. UIFSA requires that an employer honor a direct income
withholding request. However, no Tribe has enacted UIFSA nor is there a
requirement that Tribes receiving Federal IV-D funding do so. Therefore,
an employer in Indian country is not required to honor a State-issued
direct income withholding request against wages earned by an Indian
obligor, unless Tribal law so provides. Based on case law addressing
writs of garnishment, it is likely that such direct State action would
be considered an infringement on Tribal sovereignty, regardless of
whether the employer was the Tribe, a Tribally-owned employer, or an
employer that also does business within the State -- especially if the
Tribe had not authorized income withholding for support
enforcement.[^370] If the Indian obligor works on a reservation where
the Tribe receives Federal IV-D funding, the State agency can forward
the State income withholding order to the Tribal IV-D agency for
processing. Pursuant to 45 C.F.R. § 309.110(n), the Tribal IV-D agency
must receive and process income withholding orders from State or other
Tribes and ensure that such orders are promptly served on employers.

Probably the best approach is for the State IV-D agency to seek
recognition and enforcement of the order pursuant to FFCCSOA. Tribes
within Indian country are required to give full faith and credit to
valid State child support orders. Once a State support order is
recognized under FFCCSOA, the Tribal court can use enforcement methods
that are available under Tribal law.

> **[Non-Member or Non-Indian Obligor Resides and Works on
> Reservation]{.underline}**[]{#__RefHeading___Toc161206489 .anchor}

The State agency may attempt to enforce the State child support order by
a contempt proceeding against the obligor. Service of process must be
valid. See the discussion on service of process herein. It can also
enforce the order against any personal or real property that the obligor
owns off reservation.

If the non-member or non-Indian obligor works for the Tribe or a
Tribally owned business, direct enforcement by State income withholding
or garnishment of wages will likely be unsuccessful due to Tribal
sovereign immunity. If the non-member or non-Indian obligor works on the
reservation for an employer that is not entitled to claim Tribal
sovereign immunity, it is less clear whether such action infringes on
Tribal sovereignty.

If the Tribe operates a Federally funded IV-D program, the State IV-D
agency can ask the Tribal IV-D agency for assistance in processing the
State income withholding order. The Tribal IV-D agency is required by
Federal regulation to promptly serve the State withholding order on the
employer.[^371]

The State can also ask the Tribal court to recognize and enforce the
State support order pursuant to the FFCCSOA. The Tribal court will then
use Tribal law to enforce the State support order. This may be
particularly effective if the obligor owns property on the reservation
and Tribal law allows enforcement of the State support order against
such property.

> **[Non-Member or Non-Indian Obligor Resides off Reservation but Works
> on Reservation]{.underline}**[]{#__RefHeading___Toc161206490 .anchor}

The State agency may attempt to enforce the State child support order by
a contempt proceeding against the obligor. To avoid jurisdictional
issues, the agency should serve the obligor while he or she is off
reservation. The State agency can also enforce the order against any
personal or real property that the obligor owns off reservation.

If the non-member or non-Indian obligor works for the Tribe or a
Tribally owned business, direct enforcement by State income withholding
or garnishment of wages will likely be unsuccessful due to Tribal
sovereign immunity. If the non-member or non-Indian obligor works on the
reservation for an employer that is not entitled to claim Tribal
sovereign immunity, it is less clear whether such action infringes on
Tribal sovereignty.

If the Tribe operates a Federally funded IV-D program, the State IV-D
agency can ask the Tribal IV-D agency for assistance in processing the
State income withholding order. The Tribal IV-D agency is required by
Federal regulation to promptly serve the State withholding order on the
employer.[^372]

The State can also ask the Tribal court to recognize and enforce the
State support order pursuant to the FFCCSOA. The Tribal court will then
use Tribal law to enforce the State support order. In *Hanson v.
Grandberry*,[^373] the plaintiff, a non-Indian who resided off the
reservation, sought enforcement in Tribal court of a State child support
order against the defendant, also a non-Indian, who resided off the
reservation but who was an employee of the Puyallup Tribe, working at
the Tribal College located within the reservation. The defendant argued
that simply because he was an employee of the Tribe did not mean that
the Tribe automatically had jurisdiction over him. The plaintiff argued
that by voluntarily working for a Tribal enterprise, the defendant had
consented to Tribal jurisdiction. She sought full faith and credit of
the order and garnishment of wages. The Puyallup Tribal Court held that
the defendant had entered into a consensual relationship with the Tribe,
thereby giving the Tribe jurisdiction over him. Furthermore, FFCCSOA
authorized the Tribe to enforce the State child support order.

> **[Non-Member or Non-Indian Obligor Resides on Reservation but Works
> off Reservation]{.underline}**[]{#__RefHeading___Toc161206491 .anchor}

The State IV-D agency may attempt to enforce the State support order by
contempt; the best approach for avoiding service of process issues is to
serve the obligor while he or she is at work or otherwise off the
reservation. When the obligor derives income off the reservation, the
State IV-D agency can also seek enforcement of the State support order
by income withholding against the off-reservation income. Federal and
State income tax refund offset are also effective remedies.

The State can also ask the Tribal court to recognize and enforce the
State support order pursuant to the FFCCSOA. The Tribal court will then
use Tribal law to enforce the State support order. This may be
particularly effective if the obligor owns property on the reservation
and Tribal law allows enforcement of the support order against such
property.

**CHAPTER NINE**

# Table of Statutes and Authorities

######## 

######## Statutes and Regulations

U.S. Constitution, Full Faith and Credit Clause, U.S. Constitution art.
IV, § 1, cl. 1.

Alaska Native Claims Settlement Act, P.L. No. 92-203 (1971), codified at
43 U.S.C. §§1609 - 1624

Child Support Enforcement Amendments of 1984, P.L. No. 98-378 (1984),
codified at 42 U.S.C. § 666

Child Support Performance and Incentive Act of 1998, P.L. No. 105-200
(1998)

Consumer Credit Protection Act, P.L. No. 90-321, 82 Stat. 146 (1969),
codified at 15 U.S.C. §§ 1601 *et seq*.

Family Support Act of 1988, P.L. No. 100-485 (1988)

Full Faith and Credit for Child Support Orders Act, P.L. No. 103-383
(1994), codified at 28 U.S.C. § 1738B

Omnibus Budget Reconciliation Act of 1986, P. L. No. 99-509 (1986)

Personal Responsibility and Work Opportunity Reconciliation Act, P.L.
No. 104-193 (1996)

15 U.S.C. §§ 1601 *et seq*.

18 U.S.C. § 1151

18 U.S.C. § 2265

25 U.S.C. § 1322(b)

25 U.S.C. § 1911(d)

42 U.S.C. § 652(a)(11)(B)

42 U.S.C. § 654(9)(E)

42 U.S.C. § 666

42 U.S.C. § 666(a)(3)(A)

42 U.S.C. § 666(a)(4)(A)

42 U.S.C. § 666(a)(4)(B)

42 U.S.C. § 666(a)(7)(A)

42 U.S.C. § 666(a)(8)(B)

42 U.S.C. § 666(a)(16)

42 U.S.C. § 666(a)(17)

42 U.S.C. § 666(b)(3)(A)

42 U.S.C. § 666(b)(6)(A)(ii)

42 U.S.C. § 666(b)(8)

43 U.S.C. §§1609 - 1624

45 C.F.R. § 303.100

45 C.F.R. § 309.110

Tribal Child Support Enforcement Programs: Final Rule, 69 Fed. Reg.
16,638 at 16,641 (Mar. 30, 2004) (to be codified at 45 C.F.R. Pt. 309)

Uniform InterState Family Support Act (1996), 9 Pt. 1B U.L.A. 235 (1999)

Sections 501-506, UIFSA

9 Navajo Tribe Code tit 9, § 1303

S.D. Codified Laws Ann § 1-1-25

######## Case Law

*Hilton v. Guyot*, 159 U.S. 113 (1894)

*Talton v. Mayers*, 163 U.S. 376 (1896)

*FMC v. Shoshone-Bannock Tribes,* 905 F.2d 1311, 1314 (9^th^ Cir. 1990)

*Joe v. Marcum*, 621 F.2d 358 (10^th^ Cir. 1980)

*Hanson v. Grandberry*, Puyallup Tribal Court (No. CV 98-004 June 8,
1999) (http://www.Tribal-institute.org/opinions/1999.NAPU.0000008.htm)

*Hogdon v. Nelson,* No. SC-CV-19-94 (Navajo Supreme Court 8/23/1995)

*Smith v. Scott*, 30 Indian L. Rptr. 105 (Mashantucket Pequot Tribal
Court, No. MPTC-CV-2002-182 April 23, 2003)

*Begay v. Roberts*, 807 P.2d 1111 (Ariz. App. 1990)

*Calista Corp. v. DeYoung*, 569 P.2d 338 (Alaska 1977)

*First v. State*, 247 Mont. 465, 808 P.2d 467 (1991)

*John v. Baker*, Alaska Supreme Court No. S-11176 (No. 596 decided Dec.
16, 2005)

*Smith v. Hall*, 2005 N.D. 215 (filed Dec. 20, 2005)

######## Periodicals/Publications

Gould, *Tough Love for Tribes: Rethinking Sovereignty After Atkinson and
Hicks*, 37 New Eng. L. Rev. 669 (2003).

Leeds, *Cross-Jurisdictional Recognition and Enforcement of Judgments: A
Tribal Court Perspective*, 76 N.D.L. Rev. 311 (2000).

Stoner and Orona, *Full Faith and Credit, Comity, or Federal Mandate? A
Path that Leads to Recognition and Enforcement of Tribal Court Orders,
Tribal Protection Orders, and Tribal Child Custody Orders*, 34 N.M.L.
Rev. 381 (2004).

**\[page deliberately left blank\]**

**CHAPTER TEN**[]{#__RefHeading___Toc161206493 .anchor}

**EFFORTS AT FACILITATING INTERJURISDICTIONAL SUPPORT ENFORCEMENT**

# Tribal and State Child Support Programs 

The Personal Responsibility and Work Opportunity Reconciliation Act of
1996 (PRWORA),[^374] as amended by the Balanced Budget Act of
1997,[^375] authorizes the direct funding of Tribal child support
enforcement programs by the Federal government. The Department of Health
and Human Services published a final rule on March 30, 2004,[^376]
providing the mechanism for Tribes to submit child support enforcement
plans and, upon approval, to receive direct Federal funding of Tribally
operated programs.

As of March 2007, the following Tribes have been approved to operate
their own child support programs:

-   Chickasaw Nation / OK

-   Forest County Potawatomi Community / WI

-   Lac du Flambeau Band of Lake Superior Chippewa Indians / WI

-   Lummi Nation / WA

-   Menominee Tribe / WI

-   Navajo Nation / NM, AZ, UT

-   Port Gamble S'Klallam Tribe / WA

-   Puyallup Tribe of Indians / WA

-   Sisseton-Wahpeton Oyate / SD

-   Central Council Tlingit and Haida Indian Tribes / AK

There are also twenty-seven tribes with start-up programs: Osage Tribe
of Oklahoma; Cherokee Nation of Oklahoma; Quinault Indian Nation (WA);
Nooksack Indian Tribe (WA); Confederated Tribes of Umatilla (OR);
Confederated Tribes of Colville (WA); Winnebago Tribe (NE); Three
Affiliated Tribes (Mandan, Hidatsa and Arickara Nation) (ND); Red Lake
Band of Chippewa Indians (MN); Oneida Tribe of Indians (WI); Keewenaw
Bay Indian Community (MI); White Earth Nation (MN); Muscogee (Creek)
Nation, (OK); Pueblo of Zuni (NM); Ponca Tribe of Oklahoma; Penobscot
Nation (ME); Kickapoo Tribe of Kansas; Kaw Nation (OK); Mescalero Apache
Tribe (NM); Comanche Nation (OK); Modoc Tribe (OK); Klamath Tribes (OR);
Tulalip Tribes (WA); Aleutian/Pribilof Islands Association (AK);
Northern Arapaho Tribes (WY); Chippewa Cree Tribe (MT); and Coeur
D'Alene Tribe (ID) .

Some Tribal child support programs use the computer systems within their
corresponding State. Others are not yet computerized and operate using
manual systems. A few Tribes have agreements with their individual
States or counties for personal service on their reservation, although
most do not.

Some Tribes operate their own Temporary Assistance for Needy Families
(TANF) program. Members of Tribes that do not have their own program
receive TANF benefits through the State's system.

Federal regulations governing State IV-D plans were also amended to
require States to cooperate with Tribal IV-D programs.[^377] 45 C.F.R. §
302.36(a)(2) now requires States to extend the full range of services
available under the IV-D plan to all Tribal IV-D programs.

# Cooperative Agreements

PRWORA also provides that State IV-D agencies may enter into cooperative
agreements with an Indian Tribe, Tribal organization, or Alaska Native
Village, group, regional or village corporation so long as it "has an
established Tribal court system or Court of Indian Offenses with the
authority to establish paternity, establish, modify or enforce support
orders or to enter support orders in accordance with child support
guidelines established or adopted by such Tribal entity."[^378] It is
not necessary that the Tribal entity have laws and procedures meeting
Federal requirements for all IV-D functions. Implementing regulations
are at 45 C.F.R. § 302.34.[^379] Such arrangements shall contain
provisions for providing courts and law enforcement officials with
pertinent information needed in locating noncustodial parents,
establishing paternity and securing support, to the extent that such
information is relevant to the duties to be performed pursuant to the
arrangement. A State may delegate one or multiple IV-D functions to the
Tribal entity under a cooperative agreement.[^380] Under cooperative
agreements, Tribes will not have direct access to the Federal Parent
Locator Service (FPLS), Federal debt recovery, or the Federal income tax
refund offset. However, Tribal cases will be processed using all
resources available through the State IV-D program, as outlined in 45
C.F.R. §§ 303.70, 303.71, and 303.72.[^381]

45 C.F.R. § 303.107 establishes requirements for cooperative agreements.
They must:

> \(a\) Contain a clear description of the specific duties, functions
> and responsibilities of each party;
>
> \(b\) Specify clear and definite standards of performance which
> \[sic\] meet Federal requirements;
>
> \(c\) Specify that the parties will comply with title IV-D of the Act,
> implementing Federal regulations and any other applicable Federal
> regulations and requirements;
>
> \(d\) Specify the financial arrangements including budget estimates,
> covered expenditures, methods of determining costs, procedures for
> billing the IV-D agency, and any relevant Federal and State
> reimbursement requirements and limitations;
>
> \(e\) Specify the kind of records that must be maintained and the
> appropriate Federal, State and local reporting and safeguarding
> requirements; and
>
> \(f\) Specify the dates on which the arrangement begins and ends, any
> conditions for revision or renewal, and the circumstances under which
> the arrangement may be terminated.[^382]

Federal financial participation (FFP) in the eligible costs of providing
IV-D services under such a cooperative agreement is available to the
State.[^383]

An example of a formal cooperative agreement is one between the Eastern
Band of Cherokee Indian Tribe and the State of North Carolina. The State
has one child support enforcement office that serves several counties in
the area, including the reservation. The office, located in Bryson City,
10 miles from Cherokee, provides two case workers to the Cherokee CFR
Court, one for intake of new cases, and the other for enforcement of
current active cases. The primary objective of both offices is to
provide the best services available to enrolled children.[^384]

# Intergovernmental Agreements

Nationwide, States and Indian Tribes have negotiated hundreds of
intergovernmental agreements (IGAs) on such diverse subjects as hunting
and fishing rights, taxation, cross-deputization, and the Indian Child
Welfare Act.[^385] States and Tribes are also exploring the use of IGAs
to facilitate support enforcement. An example is the Colville Agreement
of 1987 entered into by the Washington State Department of Social and
Health Services and the Colville Confederate Tribes.[^386]

**\[page deliberately left blank\]**

**CHAPTER TEN**

# Table of Statutes and Authorities

######## 

######## Statutes and Regulations

Balanced Budget Act of 1997, P.L. No. 105-33 (1997)

Personal Responsibility and Work Opportunity Reconciliation Act, P.L.
No. 104-193 (1996)

42 U.S.C. § 654(33))

45 C.F.R. § 302.36(a)(2)

45 C.F.R. § 303.70

45 C.F.R. § 303.71

45 C.F.R. § 303.72

45 C.F.R. § 303.107

54 Fed. Reg. 30,222 (July 19, 1989), as amended at 61 Fed. Reg. 67,240
(Dec. 20, 1996)

54 Fed. Reg. 30,223 (July 19, 1989)

Tribal Child Support Enforcement Programs: Final Rule, 69 Fed. Reg.
16,638 (Mar. 30, 2004) (to be codified at 45 C.F.R. Pt. 309)

######## Case Law

None

**[Periodicals/Publications]{.underline}**

American Indian Law Center, State/Tribal Agreements: A Comprehensive
Study (1981).

J. Mickens, Toward a Common Goal: Tribal and State Intergovernmental
Agreements for Child Support Cases (State Justice Institute 1994).

Office of Child Support Enforcement, U.S. Dept. of Health & Human Serv.,
Strengthening the Circle: Child Support for Native American Children
(1998).

[]{.mark}

**\[page deliberately left blank\]**

# CONCLUSION

The goal of this revised monograph has been to update information
regarding the history, processes, jurisdictional issues, and innovations
of State and Tribal interaction in the area of child support. Basic
knowledge of both State and Tribal programs, and communication among
stakeholders in each community, will lead to continued improvement in
the delivery of services to Indian children. As one Tribal judge
commented, "\[o\]nce we are willing to find out about each other, we can
work together."

As the topic of Tribal and State interaction increasingly appears on the
agenda of child support conferences, speakers and attendees have had
opportunities for sharing best practices. Practice tips have included
the following:

-   To determine if someone is enrolled in a Tribe, ask the person for
    his or her Certificate of Degree of Indian Blood (CDIB) card, which
    shows enrollment.

-   Remember that each Tribe is different, with its own laws.

-   Find out what procedure(s) are required to register a State support
    order for enforcement with the Tribe.

-   Coordinate service of process in Indian country with the Tribe. When
    personal service is required, Tribal authorities are often the most
    appropriate individuals for serving State process on a reservation.

-   State and Tribal court clerks are excellent resources regarding
    pleadings, required forms, and filing deadlines and procedures.

-   Attorneys should check regarding authority to practice law in a
    particular forum. Admission to practice in a State court does not
    automatically mean that the attorney is admitted to practice in a
    Tribal court in that State.

-   Communicate.

-   Build a foundation of trust.

Speakers have also made the following long-range recommendations:

-   National and State child support conferences should include sessions
    that provide attendees an opportunity to become better informed
    about Tribal cultures and Tribal child support programs.

-   Tribal child support conferences should include sessions that
    provide attendees an opportunity to learn about State's best
    practices so that Tribes can decide if such practices are helpful in
    developing their own child support programs.

-   Joint conferences should be regularly planned for Tribal and State
    court judges who hear child support cases in order to address mutual
    problems, issues, and solutions regarding child support.

**Appendix A**[]{#__RefHeading___Toc161206499 .anchor}

**INTERNET RESOURCES**

[Bureau of Indian Affairs]{.underline}

The Bureau of Indian Affairs (BIA) responsibility is the administration
and management of 55.7 million acres of land held in trust by the United
States for American Indians, Indian Tribes, and Alaska Natives. There
are 562 Federal recognized Tribal governments in the United States.
Developing forestlands, leasing assets on these lands, directing
agricultural programs, protecting water and land rights, developing and
maintaining infrastructure and economic development are all part of the
agency\'s responsibility. In addition, the Bureau of Indian Affairs
provides education services to approximately 48,000 Indian students. For
information about the BIA see
http://www.doj.gov/bureau-indian-affairs.html (Note: As of June 2005,
the BIA website and the BIA mail servers have been made temporarily
unavailable due to litigation.)

[Indian Health Service]{.underline}

The Indian Health Service (IHS), an agency within the Department of
Health and Human Services, currently provides health services to
approximately 1.5 million American Indians and Alaska Natives who belong
to 562 Federally recognized Tribes in 35 States. For information about
health services for Indian children see www.ihs.gov

[National Tribal Child Support Association]{.underline}

For information about Tribal IV-D child support programs see
www.supportTribalchildren.org

[National Tribal Justice Resource Center]{.underline}

According to its website, the National Tribal Justice Resource Center is
the largest and most comprehensive site dedicated to Tribal justice
systems, personnel and Tribal law. The Resource Center is the central
national clearinghouse of information for Native American and Alaska
Native Tribal courts, providing both technical assistance and resources
for the development and enhancement of Tribal justice system personnel.
Programs and services developed by the Resource Center are offered to
all Tribal justice system personnel \-- whether working with formalized
Tribal courts or with tradition-based Tribal dispute resolution forums.
For information about Tribal courts see www.Tribalresourcecenter.org

[Native American Legal Resource Center at Oklahoma City University (OCU)
School of Law]{.underline}

OCU School of Law's Native American Legal Resource Center is dedicated
to advancing scholarship in the field of American Indian law and
improving the quality of legal representation for Native Americans. It
advises Tribes and governments on matters of economic development and
supports the activities of the OCU chapter of the Native American Law
Student Association. The Center also helps make available Tribal law by
publishing the *Oklahoma Tribal Court Reports* and *the Oklahoma Tribal
Constitutions* Annotated. For information about American Indian law and
initiatives in area of domestic violence, see
http://www.okcu.edu/law/academiccenters/academiccenters_nativeamerican.html

[Native American Rights Fund and the National Indian Law
Library]{.underline}

Founded in 1970, the Native American Rights Fund (NARF) is the oldest
and largest nonprofit law firm dedicated to asserting and defending the
rights of Indian Tribes, organizations and individuals nationwide. It
operates the National Indian Law Library (NILL), which is a public law
library devoted to Federal Indian and Tribal law.\
For information about Tribal law see www.narf.org

[Office of Child Support Enforcement]{.underline}

The Federal Office of Child Support Enforcement (OCSE) is within the
Administration for Children and Families, Department of Health and Human
Services. Its mission is to provide direction, guidance, and oversight
to State and Tribal CSE program offices for activities authorized and
directed by Title IV-D of the Social Security Act and other pertinent
legislation. Central and regional offices collaborate to assess State
needs, and to provide technical assistance, policy clarification,
training and support for CSE programs. For information about Federal,
State, and Tribal initiatives in child support enforcement see
http://www.acf.hhs.gov/programs/cse/fct/Tribal.htm

[Tribal Law and Policy Institute]{.underline}

The Tribal Law and Policy Institute is a Native American owned and
operated non-profit corporation organized to design and deliver
education, research, training, and technical assistance programs which
promote the enhancement of justice in Indian country and the health,
well-being, and culture of Native peoples. The Institute hosts a Tribal
Court Clearinghouse. For Tribal codes see
http://www.Tribal-institute.org

[U.S. House Committee on Resources, Office of Native American and
Insular Affairs Subcommittee]{.underline}

The jurisdiction of the House Committee on Resources includes: Native
Americans generally, including the care and allotment of Native American
lands\
and general and special measures relating to claims that are paid out of
Native American funds; and Insular possessions of the United States
generally (except those affecting the revenue and appropriations). For
information about the Office of Native American and Insular Affairs
Subcommittee see

http://resourcescommittee.house.gov/subcommittees/naia.htm

For frequently asked questions and answers regarding American Indians
see

http://resourcescommittee.house.gov/subcommittees/naia/nativeamer/faqspf.htm

[U.S. Senate Committee on Indian Affairs]{.underline}

Until 1946, when a legislative reorganization act abolished both the
House and Senate Committees on Indian Affairs, the Senate Committee on
Indian Affairs had been in existence since the early 19th century. After
1946, Indian affairs legislative and oversight jurisdiction was vested
in subcommittees of the Interior and Insular Affairs Committees of the
House of Representatives and the Senate. In 1977, the Senate
re-established the Committee on Indian Affairs and voted it a permanent
Committee in 1984. The Committee has jurisdiction to study the unique
problems of American Indian, Native Hawaiian, and Alaska Native peoples
and to propose legislation to alleviate these difficulties. These issues
include, but are not limited to, Indian education, economic development,
land management, trust responsibilities, health care, and claims against
the United States. Additionally, all legislation proposed by members of
the Senate that specifically pertains to American Indians, Native
Hawaiians, or Alaska Natives is under the jurisdiction of the Committee.
For information on Federal legislation related to American Indians,
Native Hawaiians, or Alaska Natives see http://indian.senate/gov/

[U.S. Department of Justice, Office of Tribal Justice]{.underline}

The Office of Tribal Justice (OTJ) was established to provide a single
point of contact within the Justice Department for meeting the Federal
responsibilities owed to Indian Tribes. Because Indian issues cut across
so many entities within the Executive Branch, OTJ, in cooperation with
the Bureau of Indian Affairs, serves to unify the Federal response.
According to its website, one of the activities for which OTJ has
coordination and liaison responsibilities is Tribal Justice Systems and
Public Law 280 Policy. For information on current legal issues in Indian
Country see www.usdoj.gov/otj

\[page deliberately left blank\]

**Appendix B**[]{#__RefHeading___Toc161206500 .anchor}

**PUBLIC LAW 280**

The relevant text of P.L. 280 as enacted in 1953[^387] is set out below
with subsequent amendments. An amendment in 1954 brought the Menominee
Tribe within the provisions of this section; the deleted exception is
indicated by a double strike through. The 1958 amendments[^388] are
underlined; they extended both the criminal and civil provisions of
Public Law 280 to all Indian country within Alaska. In 1970, Congress
again amended Public Law 280 by excepting the Metlakatla Indian
community from the exclusive jurisdiction of Alaska, and providing that
sections 1152 and 1153 (the General Crimes Act and the Major Crimes Act)
are not applicable within the areas of Indian country listed in the
mandatory Public Law 280 States, as "areas over which the several States
have exclusive jurisdiction"; these 1970 amendments[^389] are crossed
out and capitalized. 1984 amendments deleted references to "Territories"
that had been added in 1958; the deleted language is crossed out and in
italics.

> \"AN ACT
>
> \"To confer jurisdiction on the States of California, Minnesota,
> Nebraska, Oregon, and Wisconsin, with respect to criminal offenses and
> civil causes of action committed or arising on Indian reservations
> within such States, and for other purposes.
>
> \"Be it enacted by the Senate and House of Representatives of the
> United States of America in Congress assembled, That chapter 53 of
> title 18, United States Code, is hereby amended by inserting at the
> end of the chapter analysis preceding section 1151 of such title the
> following new item:
>
> \"\`1162. State jurisdiction over offenses committed by or against
> Indians in the Indian country.\'
>
> \"**SEC. 2**. Title 18, United States Code, is hereby amended by
> inserting in chapter 53 thereof immediately after section 1161 a new
> section, to be designated as section 1162, as follows:
>
> \"\` 1162. State jurisdiction over offenses committed by or against
> Indians in the Indian country
>
> \"\`(a) Each of the States *~~[or Territories]{.underline}~~* listed
> in the following table shall have jurisdiction over offenses committed
> by or against Indians in the areas of Indian country listed opposite
> the name of the State *~~[or Territory]{.underline}~~* to the same
> extent that such State *~~[or Territory]{.underline}~~* has
> jurisdiction over offenses committed elsewhere within the State *~~[or
> Territory]{.underline}~~*, and the criminal laws of such State *~~[or
> Territory]{.underline}~~* shall have the same force and effect within
> such Indian country as they have elsewhere within the State *~~[or
> Territory]{.underline}~~*:
>
> \"\`State *~~[or Territory]{.underline}~~* of Indian country affected

+-------------------+--------------------------------------------------+
| State [or         | Indian country affected                          |
| Terri             |                                                  |
| tory]{.underline} |                                                  |
| of                |                                                  |
+-------------------+--------------------------------------------------+
| ####### Alaska    | [All Indian country within the                   |
|                   | ~~Territory~~]{.underline} STATE, EXCEPT THAT ON |
|                   | ANNETTE ISLANDS, THE METLAKATLA INDIAN COMMUNITY |
|                   | MAY EXERCISE JURISDICTION OVER OFFENSES          |
|                   | COMMITTED BY INDIANS IN THE SAME MANNER IN WHICH |
|                   | SUCH JURISDICTION MAY BE EXERCISED BY INDIAN     |
|                   | TRIBES IN INDIAN COUNTRY OVER WHICH STATE        |
|                   | JURISDICTION HAS NOT BEEN EXTENDED.              |
+-------------------+--------------------------------------------------+
| California        | All Indian country within the State              |
+-------------------+--------------------------------------------------+
| Minnesota         | All Indian country within the State,\            |
|                   | except the Red Lake Reservation                  |
+-------------------+--------------------------------------------------+
| Nebraska          | All Indian country within the State              |
+-------------------+--------------------------------------------------+
| Oregon            | All Indian country within the State,\            |
|                   | except the Warm Springs Reservation              |
+-------------------+--------------------------------------------------+
| Wisconsin         | All Indian country within the State, except the  |
|                   | Menominee Reservation                            |
+-------------------+--------------------------------------------------+

> \"\`(b) Nothing in this section shall authorize the alienation,
> encumbrance, or taxation of any real or personal property, including
> water rights, belonging to any Indian or any Indian Tribe, band, or
> community that is held in trust by the United States or is subject to
> a restriction against alienation imposed by the United States; or
> shall authorize regulation of the use of such property in a manner
> inconsistent with any Federal treaty, agreement, or statute or with
> any regulation made pursuant thereto; or shall deprive any Indian or
> any Indian Tribe, band, or community of any right, privilege, or
> immunity afforded under Federal treaty, agreement, or statute with
> respect to hunting, trapping, or fishing or the control, licensing, or
> regulation thereof.
>
> \"\`(c) The provisions of sections 1152 and 1153 of this chapter shall
> not be applicable within the areas of Indian country listed in
> subsection (a) of this section AS AREAS OVER WHICH THE SEVERAL STATES
> HAVE EXCLUSIVE JURISDICTION.\'
>
> \"**SEC. 3**. Chapter 85 of title 28, United States Code, is hereby
> amended by inserting at the end of the chapter analysis preceding
> section 1331 of such title the following new item:
>
> \"\`1360. State civil jurisdiction in actions to which Indians are
> parties.\'
>
> \"**SEC. 4**. Title 28, United States Code, is hereby amended by
> inserting in chapter 85 thereof immediately after section 1359 a new
> section, to be designated as section 1360, as follows:
>
> \"\` 1360. State civil jurisdiction in actions to which Indians are
> parties
>
> \"\`(a) Each of the States listed in the following table shall have
> jurisdiction over civil causes of action between Indians or to which
> Indians are parties which arise in the areas of Indian country listed
> opposite the name of the State to the same extent that such State has
> jurisdiction over other civil causes of action, and those civil laws
> of such State that are of general application to private persons or
> private property shall have the same force and effect within such
> Indian country as they have elsewhere within the State:
>
> \"\`State of Indian country affected.

+-------------------+--------------------------------------------------+
| State of          | Indian country affected                          |
+-------------------+--------------------------------------------------+
| ####### Alaska    | [All Indian country within the                   |
|                   | ~~Territory~~]{.underline} STATE, EXCEPT THAT ON |
|                   | ANNETTE ISLANDS, THE METLAKATLA INDIAN COMMUNITY |
|                   | MAY EXERCISE JURISDICTION OVER OFFENSES          |
|                   | COMMITTED BY INDIANS IN THE SAME MANNER IN WHICH |
|                   | SUCH JURISDICTION MAY BE EXERCISED BY INDIAN     |
|                   | TRIBES IN INDIAN COUNTRY OVER WHICH STATE        |
|                   | JURISDICTION HAS NOT BEEN EXTENDED.              |
+-------------------+--------------------------------------------------+
| California        | All Indian country within the State              |
+-------------------+--------------------------------------------------+
| Minnesota         | All Indian country within the State,\            |
|                   | except the Red Lake Reservation                  |
+-------------------+--------------------------------------------------+
| Nebraska          | All Indian country within the State              |
+-------------------+--------------------------------------------------+
| Oregon            | All Indian country within the State,\            |
|                   | except the Warm Springs Reservation              |
+-------------------+--------------------------------------------------+
| Wisconsin         | All Indian country within the State, except the  |
|                   | Menominee Reservation                            |
+-------------------+--------------------------------------------------+

> \"\`(b) Nothing in this section shall authorize the alienation,
> encumbrance, or taxation of any real or personal property, including
> water rights, belonging to any Indian or any Indian Tribe, band, or
> community that is held in trust by the United States or is subject to
> a restriction against alienation imposed by the United States; or
> shall authorize regulation of the use of such property in a manner
> inconsistent with any Federal treaty, agreement, or statute or with
> any regulation made pursuant thereto; or shall confer jurisdiction
> upon the State to adjudicate, in probate proceedings or otherwise, the
> ownership or right to possession of such property or any interest
> therein.
>
> \"\`(c) Any Tribal ordinance or custom heretofore or hereafter adopted
> by an Indian Tribe, band, or community in the exercise of any
> authority which it may possess shall, if not inconsistent with any
> applicable civil law of the State, be given full force and effect in
> the determination of civil causes of action pursuant to this
> section.\'
>
> \"**SEC. 5**. Section 1 of the Act of October 5, 1949 (63 Stat. 705,
> ch. 604), is hereby repealed, but such repeal shall not affect any
> proceedings heretofore instituted under that section.
>
> \"**SEC. 6**. Notwithstanding the provisions of any Enabling Act for
> the admission of a State, the consent of the United States is hereby
> given to the people of any State to amend, where necessary, their
> State constitution or existing statutes, as the case may be, to remove
> any legal impediment to the assumption of civil and criminal
> jurisdiction in accordance with the provisions of this Act: Provided,
> That the provisions of this Act shall not become effective with
> respect to such assumption of jurisdiction by any such State until the
> people thereof have appropriately amended their State constitution or
> statutes as the case may be.
>
> \"**SEC. 7**. The consent of the United States is hereby given to any
> other State not having jurisdiction with respect to criminal offenses
> or civil causes of action, or with respect to both, as provided for in
> this Act, to assume jurisdiction at such time and in such manner as
> the people of the State shall, by affirmative legislative action,
> obligate and bind the State to assumption thereof.\"

(Added Aug. 15, 1953, ch. 505, Sec. 4, 67 Stat. 589; amended Aug.

24, 1954, ch. 910, Sec. 2, 68 Stat. 795; Pub. L. 85-615, Sec. 2,

Aug. 8, 1958, 72 Stat. 545; Pub. L. 95-598, title II, Sec. 239,

Nov. 6, 1978, 92 Stat. 2668; Pub. L. 98-353, title I, Sec. 110,

July 10, 1984, 98 Stat. 342.)

AMENDMENTS

1984 - Subsec. (a). Pub. L. 98-353 struck out \'\'or Territories\'\'

after \'\'Each of the States\'\', struck out \'\'or Territory\'\' after

\'\'State\'\' in 5 places, and substituted \'\'within the State\'\' for

\'\'within the Territory\'\' in item relating to Alaska.

1978 - Subsec. (a). Pub. L. 95-598 directed the amendment of

subsec. (a) by substituting in the item relating to Alaska \'\'within

the State\'\' for \'\'within the Territory\'\', which amendment did not

become effective pursuant to section 402(b) of Pub. L. 95-598, as

amended, set out as an Effective Date note preceding section 101 of

Title 11, Bankruptcy.

1958 - Subsec. (a). Pub. L. 85-615 gave Alaska jurisdiction over

civil causes of action between Indians or to which Indians are

parties which arise in all Indian country within the Territory of

Alaska.

1954 - Subsec. (a). Act Aug. 24, 1954, brought the Menominee

Tribe within the provisions of this section.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-353 effective July 10, 1984, see section

122(a) of Pub. L. 98-353, set out as an Effective Date note under

section 151 of this title.

ADMISSION OF ALASKA AS STATE

Admission of Alaska into the Union was accomplished Jan. 3, 1959,

on issuance of Proc. No. 3269, Jan. 3, 1959, 24 F.R. 81, 73 Stat.

c16, as required by sections 1 and 8(c) of Pub. L. 85-508, July 7,

1958, 72 Stat. 339, set out as notes preceding section 21 of Title

48, Territories and Insular Possessions.

AMENDMENT OF STATE CONSTITUTIONS TO REMOVE LEGAL IMPEDIMENT;

EFFECTIVE DATE

Section 6 of act Aug. 15, 1953, provided that: \'\'Notwithstanding

the provisions of any Enabling Act for the admission of a State,

the consent of the United States is hereby given to the people of

any State to amend, where necessary, their State constitution or

existing statutes, as the case may be, to remove any legal

impediment to the assumption of civil and criminal jurisdiction in

accordance with the provisions of this Act (adding this section and

section 1162 of Title 18, Crimes and Criminal Procedure): Provided,

That the provisions of this Act shall not become effective with

respect to such assumption of jurisdiction by any such State until

the people thereof have appropriately amended their State

constitution or statutes as the case may be.\'\'

CONSENT OF UNITED STATES TO OTHER STATES TO ASSUME JURISDICTION

> Act Aug. 15, 1953, ch. 505, Sec. 7, 67 Stat. 590, which gave
>
> consent of the United States to any other State not having
>
> jurisdiction with respect to criminal offenses or civil causes of
>
> action, or with respect to both, as provided for in this section
>
> and section 1162 of Title 18, Crimes and Criminal Procedure, to
>
> assume jurisdiction at such time and in such manner as the people
>
> of the State shall, by legislative action, obligate and bind the
>
> State to assumption thereof, was repealed by section 403(b) of Pub.
>
> L. 90-284, title IV, Apr. 11, 1968, 82 Stat. 79, such repeal not to
>
> affect any cession of jurisdiction made pursuant to such section
>
> prior to its repeal.

Retrocession of jurisdiction by State acquired by State pursuant

to section 7 of Act Aug. 15, 1953, prior to its repeal, see section

1323 of Title 25, Indians.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 25 sections 566e, 711e,

713f, 714e, 715d, 1300b-15, 1300f, 1300i-1, 1323, 1747, 1772d,

1918\.

**Appendix C**[]{#__RefHeading___Toc161206501 .anchor}

**FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS**

**Section 1738B. Full faith and credit for child support orders**

\(a\) General Rule. - The appropriate authorities of each State -

\(1\) shall enforce according to its terms a child support order made
consistently with this section by a court of another State; and

\(2\) shall not seek or make a modification of such an order except in
accordance with subsections (e), (f), and (i).

\(b\) Definitions. - In this section:

\'\'child\'\' means -

\(A\) a person under 18 years of age; and

\(B\) a person 18 or more years of age with respect to whom a child
support order has been issued pursuant to the laws of a State.

\'\'child\'s State\'\' means the State in which a child resides.

\'\'child\'s home State\'\' means the State in which a child lived with
a parent or a person acting as parent for at least 6 consecutive months
immediately preceding the time of filing of a petition or comparable
pleading for support and, if a child is less than 6 months old, the
State in which the child lived from birth with any of them. A period of
temporary absence of any of them is counted as part of the 6-month
period.

\'\'child support\'\' means a payment of money, continuing support, or
arrearages or the provision of a benefit (including payment of health
insurance, child care, and educational expenses) for the support of a
child.

\'\'child support order\'\' -

\(A\) means a judgment, decree, or order of a court requiring the
payment of child support in periodic amounts or in a lump sum; and

\(B\) includes -

\(i\) a permanent or temporary order; and

\(ii\) an initial order or a modification of an order.

\'\'contestant\'\' means -

\(A\) a person (including a parent) who -

\(i\) claims a right to receive child support;

\(ii\) is a party to a proceeding that may result in the issuance of a
child support order; or

\(iii\) is under a child support order; and

\(B\) a State or political subdivision of a State to which the right to
obtain child support has been assigned.

\'\'court\'\' means a court or administrative agency of a State that is
authorized by State law to establish the amount of child support payable
by a contestant or make a modification of a child support order.

\'\'modification\'\' means a change in a child support order that
affects the amount, scope, or duration of the order and modifies,
replaces, supersedes, or otherwise is made subsequent to the child
support order.

\'\'State\'\' means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the territories and
possessions of the United States, and Indian country (as defined in
section 1151 of title 18).

\(c\) Requirements of Child Support Orders. - A child support order made
by a court of a State is made consistently with this section if -

\(1\) a court that makes the order, pursuant to the laws of the State in
which the court is located and subsections (e), (f), and (g) -

\(A\) has subject matter jurisdiction to hear the matter and enter such
an order; and

\(B\) has personal jurisdiction over the contestants; and

\(2\) reasonable notice and opportunity to be heard is given to

the contestants.

\(d\) Continuing Jurisdiction. - A court of a State that has made a
child support order consistently with this section has continuing,
exclusive jurisdiction over the order if the State is the child\'s State
or the residence of any individual contestant unless the court of
another State, acting in accordance with subsections (e) and (f), has
made a modification of the order.

\(e\) Authority To Modify Orders. - A court of a State may modify a
child support order issued by a court of another State if -

\(1\) the court has jurisdiction to make such a child support order
pursuant to subsection (i); and

(2)(A) the court of the other State no longer has continuing, exclusive
jurisdiction of the child support order because that State no longer is
the child\'s State or the residence of any individual contestant; or

\(B\) each individual contestant has filed written consent with the
State of continuing, exclusive jurisdiction for a court of another State
to modify the order and assume continuing, exclusive jurisdiction over
the order.

\(f\) Recognition of Child Support Orders. - If 1 or more child support
orders have been issued with regard to an obligor and a child, a court
shall apply the following rules in determining which order to recognize
for purposes of continuing, exclusive jurisdiction and enforcement:

\(1\) If only 1 court has issued a child support order, the order of
that court must be recognized.

\(2\) If 2 or more courts have issued child support orders for the same
obligor and child, and only 1 of the courts would have continuing,
exclusive jurisdiction under this section, the order of that court must
be recognized.

\(3\) If 2 or more courts have issued child support orders for the same
obligor and child, and more than 1 of the courts would have continuing,
exclusive jurisdiction under this section, an order issued by a court in
the current home State of the child must be recognized, but if an order
has not been issued in the current home State of the child, the order
most recently issued must be recognized.

\(4\) If 2 or more courts have issued child support orders for the same
obligor and child, and none of the courts would have continuing,
exclusive jurisdiction under this section, a court having jurisdiction
over the parties shall issue a child support order, which must be
recognized.

\(5\) The court that has issued an order recognized under this
subsection is the court having continuing, exclusive jurisdiction under
subsection (d).

\(g\) Enforcement of Modified Orders. - A court of a State that no
longer has continuing, exclusive jurisdiction of a child support order
may enforce the order with respect to nonmodifiable obligations and
unsatisfied obligations that accrued before the date on which a
modification of the order is made under subsections (e) and (f).

\(h\) Choice of Law. -

\(1\) In general. - In a proceeding to establish, modify, or enforce a
child support order, the forum State\'s law shall apply except as
provided in paragraphs (2) and (3).

\(2\) Law of State of issuance of order. - In interpreting a child
support order including the duration of current payments and other
obligations of support, a court shall apply the law of the State of the
court that issued the order.

\(3\) Period of limitation. - In an action to enforce arrears under a
child support order, a court shall apply the statute of limitation of
the forum State or the State of the court that issued the order,
whichever statute provides the longer period of limitation.

\(i\) Registration for Modification. - If there is no individual
contestant or child residing in the issuing State, the party or support
enforcement agency seeking to modify, or to modify and enforce, a child
support order issued in another State shall register that order in a
State with jurisdiction over the nonmovant for the purpose of
modification.

[^1]: Office of Child Support Enforcement, U.S. Dept. of Health & Human
    Serv., Child Support Enforcement (CSE) FY 2004, Preliminary Report
    to Congress.

[^2]: *Id*.

[^3]: *Ibid*.

[^4]: Office of Child Support Enforcement, *supra* note 1. The reporting
    Tribes were the Chickasaw, Lac du Flambeau, Lummi, Menominee,
    Navajo, Forest County Potawatomi, Puyallup, Sisseton-Wahpeton, and
    Port Gamble S'Klallam.

[^5]: *Id*.

[^6]: As noted by the Native American Training Institute, "\[t\]he
    dilemma over whether to use the term Indian, Native American,
    American Indian, or some other term, when referring to the
    collective group has been a long-running debate. The only agreement
    seems to be that there is no agreement on any one term. . . .
    \[T\]he issue often comes down to a matter of personal preference. .
    . . It is also important to note that some people may have definite
    preferences for the term used while others will not have a
    particular preference as long as any term is used respectively."
    North Dakota Department of Human Services, [Journey to
    Understanding: An Introduction to North Dakota Tribes]{.underline}
    (2003) (written under contract by the Native American Training
    Institute) \[hereinafter referred to as Journey to Understanding\].
    According to a 1995 U.S. Census Bureau survey of people within the
    group that the term was meant to represent, 49.76% of the
    respondents preferred the term "American Indian," 37.35% preferred
    the term "Native American," 3.66 % preferred some other term, 3.51%
    preferred the term "Alaska native," and 5.72% expressed no
    preference. For purposes of this monograph, the term American Indian
    or Indian is used.

[^7]: Rubin, *Tribal Courts and State Courts: Disputed Civil
    Jurisdiction Concerns and Steps Toward Resolution*, State Ct. J. 9
    (Spring 1990).

[^8]: *Id.* at 11.

[^9]: *See* Reeds, *Cross-Jurisdictional Recognition and Enforcement of
    Judgments: A Tribal Court Perspective*, 76 N.D. L. Rev. 311 (2000).

[^10]: 18 U.S.C. § 2265 (2002).

[^11]: 28 U.S.C. § 1738B (2002).

[^12]: U.S. Commission on InterState Child Support, Supporting Our
    Children: A Blueprint for Reform (U.S. Gov't Printing Office:
    Washington, DC 1992).

[^13]: *See, e.g*., 25 U.S.C. § 479.

[^14]: *Id*.

[^15]: *See, e.g*., 25 U.S.C. §§ 451, 452, 456.

[^16]: *See United States v. Rogers*, 45 U.S. 567 (1846); *State v.
    Atteberry*, 519 P.2d 53 (Ariz. 1974).

[^17]: 18 U.S.C. § 1151.

[^18]: *See, e.g*., *United States v. Sohappy*, 770 F.2d 816 (9^th^ Cir.
    1985), *cert. denied* 477 U.S. 906 (1986); *United States v.
    Levesque*, 681 F.2d 75, 78 (1^st^ Cir. 1982), *cert. denied* 459
    U.S. 1089 (1982).

[^19]: According to the Native American Training Institute, a common
    misperception is that "reservations" are parcels of land given to
    Indian Tribes by the U.S. government. To the contrary, a reservation
    is land that Indian Tribes have always owned; it is land that was
    "reserved" by the Tribes and never given over to the United States.
    Journey to Understanding, *supra* note 6.

[^20]: F. Cohen, Handbook of Federal Indian Law (ed. 1982).

[^21]: Information from the website of the U.S. House Committee on
    Resources, Office of Native American and Insular Affairs
    Subcommittee,
    http://resourcescommittee.house.gov/subcommittees/naia.htm.

[^22]: Cohen, *supra* note 20, at 230.

[^23]: *See Johnson v. McIntosh*, 21 U.S. (8 Wheat) 543, 574 (1823).
    *See also* Cohen, *supra* note 20.

[^24]: Journey to Understanding*, supra* note 6, at 27.

[^25]: ^25^ Codified at 18 U.S.C. § 1152. Further discussion of the
    General Crimes Act is found within Chapter Three.

[^26]: *See* N. Newton *et al.*, eds., Cohen's Handbook of Federal
    Indian Law § 9.02\[c\] (2005 ed.).

[^27]: *See, e.g*., Stoner and Orona, *Full Faith and Credit, Comity, or
    Federal Mandate? A Path that Leads to Recognition and Enforcement of
    Tribal Court Orders, Tribal Protection Orders, and Tribal Child
    Custody Orders,* 34 N.M.L. Rev. 381 (2004); Department of Justice,
    Criminal Resource Manual, The Major Crimes Act -- 18 U.S.C.§ 1153
    (Oct. 1997). Although the Supreme Court has alluded to the
    possibility that federal jurisdiction under the Major Crimes Act may
    be exclusive of the Tribes (*see Oliphant v. Suquamish Indian
    Tribe*, 435 U.S. 191, 203 n. 14 (1978)), at least one federal
    circuit has found Tribal jurisdiction to be concurrent (*see Wetsit
    v. Stafne*, 44 F.23d 823, 825-26 (9^th^ Cir. 1995)). Reading the
    statute such that Tribal concurrent jurisdiction remains is also
    consistent with subsequent Congressional action. In reaction to the
    Supreme Court case of *Duro v.* *Reina*, Congress amended the Indian
    Civil Rights Act. The 1991 amendment defines "powers of
    self-government" to include the inherent power of Indian Tribes to
    exercise criminal jurisdiction over all Indians; there is no express
    exception for crimes enunciated in the Major Crimes Act. *See* N.
    Newton *et al.*, eds., Cohen's Handbook of Federal Indian Law § 9.04
    (2005 ed.).

[^28]: Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984
    (codified as amended at 25 U.S.C. §§ 461-479).

[^29]: Cohen, *supra* note 20.

[^30]: Most Tribes have now replaced BIA codes with codes that address
    diverse issues.

[^31]: Nearly all of these tribes were later successful in regaining
    Tribal status, although many recovered only a small portion of their
    former lands. See Gould, *The Congressional Response to Duro v.
    Reina: Compromising Sovereignty and the Constitution*, 28 U.C. Davis
    L. Rev. 53, nn. 8-9 (1995); Walch, *Terminating the Indian
    Termination Policy*, 35 Stan. L. Rev. 1181 (1983).

[^32]: P.L. No. 90-284, §§ 201-701, 82 Stat. 73, 77-81 (codified at 25
    U.S.C. §§ 1301 -- 41).

[^33]: P.L. No. 99-570, § 4217, 100 Stat. 3207-146 (codified at 25
    U.S.C. § 1302(7)).

[^34]: P.L. No. 93-638. The Act was amended in 1988, 1990, and 1994.

[^35]: The amendment in 1991 was a Congressional "fix" to the Supreme
    court decision in *Duro v. Reina*, 495 U.S. 676 (1990). *Duro* held
    that Tribal courts do not have criminal jurisdiction over non-member
    Indians. The language overturns *Duro* by defining powers of Tribal
    self-government to include the "inherent power of Indian Tribes" to
    "exercise jurisdiction over all Indians."

[^36]: 28 U.S.C. § 1738(B).

[^37]: See Section 5546 of the Balanced Budget Act of 1997, P.L. No.
    105-33 (codified as amended at 42 U.S.C. § 655(f)).

[^38]: P.L. No. 104-193, 110 Stat. 2166 at 2256 (codified as amended at
    42 U.S.C. § 654(33)). According to OCSE-AT-98-21 (July 28, 1998), it
    is not necessary that the Tribe comply with every federal IV-D
    regulation in order to qualify for a cooperative agreement with a
    State IV-D agency.

[^39]: *See, e.g., Iowa Mutual Ins. Co. v. LaPlante*, 480 U.S. 9 (1987);
    *National Farmers Union Ins. Cos. v. Crow Tribe*, 471 U.S. 845
    (1985); *Merrion v. Jicarilla Apache Tribe*, 455 U.S. 130 (1982);
    *Santa Clara Pueblo v. Martinez*, 436 U.S. 49 (1978); *Fisher v.
    District Court*, 424 U.S. 382 (1976); *Williams v. Lee,* 358 U.S.
    217 (1959).

[^40]: *Wheeler* involved an Indian defendant who had been convicted and
    punished in a Navajo Tribal court for contributing to the
    delinquency of a minor and was subsequently prosecuted in federal
    court for statutory rape rising out of the same incident. The Court
    concluded that the subsequent federal prosecution of an offender
    already prosecuted and punished in Tribal courts did not violate
    double jeopardy because the Tribal and federal prosecutions were
    brought by separate sovereigns and therefore were not "for the same
    offense."

[^41]: 435 U.S. 313, 326.

[^42]: Congress subsequently passed a statute expressly granting Tribal
    courts such jurisdiction. *See* 105 Stat. 646 (codified at 25 U.S.C.
    § 1301(2)), amending the Indian Civil Rights Act. In *United States
    v. Lara*, 541 U.S. 193 (2004), the Court held that the amendment was
    a Constitutionally permissible reinstatement by Congress of a
    tribe's inherent power to prosecute nonmember Indians for
    misdemeanors. Therefore, because the Double Jeopardy Clause does not
    bar successive prosecutions brought by separate sovereigns, there
    was no bar to federal prosecution of a defendant nonmember Indian
    for assaulting a federal officer after he had been convicted under a
    Tribal criminal misdemeanor statute for violence to a policeman.

[^43]: 450 U.S. 544, 566-7.

[^44]: *See* Gould, *Tough Love for Tribes: Rethinking Sovereignty After
    Atkinson and Hicks*, 37 New Eng. L. Rev. 669 (2003).

[^45]: *Id.*

[^46]: 533 U.S. 353, 376-7.

[^47]: *See supra* note 42.

[^48]: 541 U.S. 193, 214.

[^49]: 541 U.S. 193, 219.

[^50]: *See* www.doi.gov/bureau-indian-affairs.html (2005).

[^51]: For the development of Tribal courts, *see* Hagan, Indian Police
    and Judges: Experiments in Acculturation and Control (1966);
    National American Indian Court Judges Association, Indian Courts and
    the Future (1978). In 1900, two-thirds of reservations had CFR
    courts. According to the Bureau of Indian Affairs, there are now 562
    federally recognized Tribes in the contiguous United States and
    Alaska. Among these Tribes, there are approximately 275 Tribal
    courts and 23 CFR courts. www.Tribalresourcecenter.org.

[^52]: Although Tribes are not subject to the Bill of Rights within the
    U.S. Constitution, the Indian Civil Rights Act of 1968 made
    applicable many of the Constitutional rights to Tribes. The
    exceptions include the right to appointed counsel to indigent
    defendants in certain criminal cases.

[^53]: Atwood, *Tribal Jurisdiction and Cultural Meanings of the
    Family*, 79 Neb. L. Rev. 577, 592 (2000).

[^54]: *Id*.

[^55]: Atwood, *supra* note 53, at 596-597.

[^56]: Hansen, *Survey of Civil Jurisdiction in Indian Country 1990*, 16
    Am. Indian L. Rev. No. 2, n. 158 (Fall 1991).

[^57]: Tribal Child Support Enforcement Programs: Final Rule, 69 Fed.
    Reg. 16,638 at 16,641 (Mar. 30, 2004) (to be codified at 45 C.F.R.
    Pt. 309).

[^58]: 25 C.F.R. § 11.500 (2004).

[^59]: *See Mescalero Apache Tribe v. Jones*, 411 U.S. 145 (1973).

[^60]: N. Newton *et al.*, eds., Cohen's Handbook of Federal Indian Law
    § 4.01\[1\] (2005 ed.). The Handbook notes that there have been some
    recent judicial departures from these principles.

[^61]: Indian country is defined in 18 U.S.C. § 1151.

[^62]: *Oliphant v. Suquamish Indian Tribe*, 435 U.S. 191 (1978).

[^63]: 28 U.S.C. § 1331.

[^64]: 28 U.S.C. § 1332.

[^65]: *Iowa Mutual Ins. Co. v. LaPlante*, 480 U.S. 9 (1987); *National
    Farmers Union Ins. Cos. v. Crow Tribe*, 471 U.S. 845 (1985).

[^66]: 28 U.S.C. § 1360.

[^67]: 18 U.S.C. § 1152.

[^68]: *See* N. Newton *et al.*,eds., Cohen's Handbook of Federal Indian
    Law § 9.02\[c\] (2005 ed.).

[^69]: 18 U.S.C. § 1153.

[^70]: 109 U.S. 556 (1883).

[^71]: 18 U.S.C. § 1153.

[^72]: *Supra* note 27.

[^73]: 25 U.S.C. § 1302(7) (limiting punishment for any one offense to
    one year in jail and a \$5000 fine).

[^74]: *Supra* note 33.

[^75]: The Termination Era ran from approximately 1945 to 1961. The
    Court in *Bryan v Itasca County*, 426 U.S. 373 (1976), emphasized
    that Public Law 280 was not a termination measure. Rather it
    reflected an assimilationist philosophy: "That Congress intended to
    facilitate assimilation when it authorized a transfer of
    jurisdiction from the Federal Government to the States does not
    necessarily mean, however, that it intended in P. L. No. 280 to
    terminate Tribal self-government." *Washington v. Yakima*, 439 U.S.
    463, 488 n. 32 (1979).

[^76]: Public Law 280 is codified in various sections of 18 U.S.C., 25
    U.S.C., and 28 U.S.C. For detailed discussions of the statute, *see,
    e.g*., Goldberg, *Public Law 280: The Limits of State Jurisdiction
    over Reservation Indians*, 22 UCLA L. Rev. 535 (1975); Foerster,
    *Comment: Divisiveness and Delusion: Public Law 280 and the Evasive
    Criminal/Regulatory Distinction*, 46 UCLA L. Rev. 1333 (1999). *See
    also* the dissent of Chief Justice Matthews in *John v. Baker*, 982
    P.2d 738 (Alaska 1999).

[^77]: *See* Gould, *supra* note 44.

[^78]: The text of Public Law 280 is set forth in Appendix B.

[^79]: California, Minnesota (except for Red Lake Reservation),
    Nebraska, Oregon (except for Warm Springs Reservation), and
    Wisconsin (except for Menominee Reservation).

[^80]: Codified at 18 U.S.C. § 1162. *See* Comment, *Divisiveness and
    Delusion: Public Law 280 and the Evasive Criminal/Regulatory
    Distinction*, 46 UCLA L. Rev. 1333 (1999).

[^81]: Codified at 28 U.S.C. § 1360.

[^82]: An exception within Alaska is the Metlakatla Reservation.

[^83]: *See* Jimenez & Song, \"Concurrent Tribal and State Jurisdiction
    under Public Law 280,\" 47 AU L. Rev. 1627 (1998).

[^84]: 25 U.S.C. §§ 1321-1322.

[^85]: 25 U.S.C. § 1324. According to a report accompanying the House
    version of Public Law 280 in 1953, there were eight States, which --
    in response to Enabling Acts \-- had Constitutions disclaiming all
    right and title to lands owned by Indians and declaring that such
    lands remained under the absolute jurisdiction and control of the
    Congress of the United States. *See* H.R. Rep. No. 848, 83^rd^
    Cong., 1^st^ Sess. (1953). These States were Arizona, Montana, New
    Mexico, North Dakota, Oklahoma, South Dakota, Utah, and Washington.

[^86]: S.Rep. No. 699, 83^rd^ Cong., *reprinted in* 1953 U.S. Code Cong.
    & Admin. News 2409.

[^87]: *Id.* at 5.

[^88]: S.Rep. No. 699, 83^rd^ Cong., *reprinted in* 1953 U.S. Code Cong.
    & Admin. News 2409, 2411-12.

[^89]: *Id*.

[^90]: Arizona, Florida, Idaho, Iowa, Montana, Nevada, North Dakota,
    South Dakota, Utah, and Washington. Disclaimer States have responded
    in diverse ways to the Public Law 280 offer of jurisdiction. Only
    North Dakota actually amended its constitution. *See* *Washington v
    Yakima*, 439 U.S. 463, 486 n. 29 (1979). Many of these States have
    repealed their statutes assuming jurisdiction (e.g., Arizona),
    returned their jurisdiction to the federal government (e.g.,
    Nevada), or had their statutes assuming jurisdiction invalidated by
    the courts (e.g., North Dakota and South Dakota).

[^91]: P.L. No. 90-284, §§ 201-701, 82 Stat. 73, 77-81 (codified at 25
    U.S.C. §§ 1301-41). For a full discussion of Public Law 280, *see*
    N. Newton *et al.*, eds., Cohen's Handbook of Federal Indian Law §
    6.04\[3\] (2005 ed.).

[^92]: Codified at 25 U.S.C. §§ 1321 and 1322. *See* *Kennerly v.
    District Ct. of Montana*, 400 U.S. 423 (1971).

[^93]: Codified at 25 U.S.C. § 1323(a). The Indian Civil Rights Act also
    repealed Section 7 of Public Law 280 with the proviso that the
    repeal did not affect any cession made prior to the repeal. 25
    U.S.C. § 1323(b). Section 6 of Public Law 280 was re-enacted without
    change. 25 U.S.C. § 1324.

[^94]: The sources of information for the chart are N. Newton *et al*.,
    eds., Cohen's Handbook of Federal Indian Law (2005 ed.) and
    Goldberg-Ambrose, Planting Tail Feathers: Tribal Survival and Public
    Law 280 (UCLA American Indian Studies Center 1997), pages 9 - 10.

[^95]: In *Alaska v. Native Village of Venetie*, 522 U.S. 520 (1998),
    the United States Supreme Court removed the Indian country status of
    most lands held by Alaskan Natives. Since Public Law 280 applies
    within "Indian country," that decision left Public Law 280
    irrelevant to much of Alaska. However, there are still Native
    allotments and Native townsites that likely qualify as Indian
    country, leaving some room \-- in addition to the Metlakatla Indian
    Reservation \-- for the continued operation of Public Law 280. *See*
    Strommer & Osborne,"'Indian Country' and the Nature and Scope of
    Tribal Self-Government in Alaska," 22 Alaska L. Rev. 1 (2005).

[^96]: When Minnesota was listed as a mandatory Public Law 280 State,
    Red Lake Reservation was excepted from its jurisdiction. In 1975,
    Minnesota retroceded, its jurisdiction over the Nett Lake
    Reservation.

[^97]: *See* Public Law 280 discussion in *Balyeat Law, PC v. Pettit*,
    291 Mont. 196, 967 P.2d 398 (1998).

[^98]: When Oregon was named as a mandatory Public Law 280 State, Warm
    Springs Reservation was excepted from its jurisdiction. In 1981,
    Oregon retroceded its criminal jurisdiction over the Umatilla
    Reservation.

[^99]: For a complete list of Tribes that consented to full Washington
    Public Law 280 jurisdiction (some of which have later retroceded),
    *see* National American Indian Court Judges Association, Justice and
    the American Indian, Vol. 1, The Impact of Public Law 280 upon the
    Administration of Justice on Indian Reservations (1974).

[^100]: When Wisconsin was named as a mandatory Public Law 280 State,
    the Menominee Reservation was exempted from its jurisdiction. In
    1976, when Congress terminated the Tribe, Wisconsin reacquired
    jurisdiction over that territory. When Congress restored the
    Menominee Tribe to federal status in 1976, Wisconsin retroceded the
    jurisdiction it had acquired by the termination.

[^101]: *See Washington v. Yakima*, 439 U.S. 463, 486 n. 30, citing
    *Williams v. Lee,* 358 U.S. 217 (1959); *Kennerly v. District Court
    of Montana*, 400 U.S. 423 (1971); *McClanahan v. Arizona State Tax
    Comm'n*, 411 U.S. 164 (1973); and *Bryan v. Itasco County*, 426 U.S.
    373 (1976). *See also California v. Cabazon* *Band of Mission
    Indians*, 480 U.S. 202 (1987).

[^102]: Partial Public Law 280 jurisdiction was explicitly authorized by
    the Indian Civil Rights Act of 1968. *See* *supra* note 91.

[^103]: For a further discussion of the distinction between criminal and
    regulatory action, *see* Foerster, *supra* note 76.

[^104]: The constitutionality of the Major Crimes Act was upheld in
    *United States v. Kagama*, 118 U.S*.* 375 (1886). *See also United
    States v. Antelope*, 430 U.S. 641 (1977).

[^105]: Although the Supreme Court has alluded to the possibility that
    federal jurisdiction under the Major Crimes Act may be exclusive of
    the Tribes (*see Oliphant v. Suquamish Indian Tribe*, 435 U.S. 191,
    203 n. 14 (1978)), at least one federal circuit has found Tribal
    jurisdiction to be concurrent (*see Wetsit v. Stafne*, 44 F.3d 823,
    825-826 (9^th^ Cir. 1995)).

[^106]: 18 U.S.C. § 1162(c).

[^107]: *See* N. Newton *et al.*, eds., Cohen's Handbook of Federal
    Indian Law § 6.04\[3\]\[d\] (2005 ed.).

[^108]: Forum Summary, Tribal Leaders Forum on *Duro v. Reina*, held
    January 11, 1991. Sponsored by the American Indian Resources
    Institute in conjunction with the National Indian Justice Center and
    the Native American Rights Fund.

[^109]: The amendment in 1991 was a Congressional "fix" to the Supreme
    court decision in *Duro v. Reina*, 495 U.S. 676 (1990). *Duro* held
    that Tribal courts do not have criminal jurisdiction over non-member
    Indians. The language overturns *Duro* by defining powers of Tribal
    self-government to include the "inherent power of Indian Tribes" to
    "exercise jurisdiction over all Indians." For an analysis of the
    "Duro fix," especially its language recognizing the "inherent power"
    of Tribes to recognize criminal jurisdiction over all Indians, *see*
    Gould, *supra* note 44.

[^110]: 541 U.S. at 198.

[^111]: For example, criminal nonsupport is a misdemeanor offense in
    Tribes operating under CFR codes. 25 C.F.R. § 11.425 governing
    Courts of Indians Offenses provides the following: "A person commits
    a misdemeanor if he or she persistently fails to provide support
    which he or she can provide and which he or she knows he or she is
    legally obligated to provide to the spouse, child, or other
    dependent."

[^112]: *See State v. Zaman*, 252 Ariz. Adv. Rep. 49 (Ariz. App. Div. 1,
    cr 960349, decided 09/23/1997). Indian Tribes have no jurisdiction
    to prosecute non-Indians for crimes committed on an Indian
    reservation. *Oliphant v. Suquamish Indian Tribe*, 435 U.S. 191, 195
    (1978).

[^113]: *See*, *e.g.*, *Iowa Mutual Ins. Co. v. LaPlante*, 480 U.S. 9
    (1987); *National Farmers Union Ins. Cos. v. Crow Tribe*, 471 U.S.
    845 (1985); *Merrion v. Jicarilla Apache Tribe*, 455 U.S. 130
    (1982); *Williams v. Lee*, 358 U.S. 217 (1959); *but see* *Nevada v.
    Hicks*, 533 U.S. 353 (2001) (denying Tribal jurisdiction to hear
    claim against State official).

[^114]: *Santa Clara Pueblo v. Martinez*, 436 U.S. 49 (1978).

[^115]: *See* *Three Affiliated Tribes of the Fort Berthold Reservation
    v. Wold Engineering, P.C.*, 467 U.S. 138, 148 (1984). For Tribal
    courts operating under authority from the Code of Federal
    Regulations, it is clear that civil jurisdiction encompasses
    nonmember Indians. 25 C.F.R. § 11.103(a).

[^116]: A notable exception is established by the Indian Child Welfare
    Act, 25 U.S.C. § 1911(b), which provides for the transfer of many
    off-reservation child welfare proceedings involving Indian children
    to Tribal court. Based on State case law, paternity cases involving
    an Indian party are also exceptions to the general rule.

[^117]: 28 U.S.C. § 1360(a).

[^118]: 28 U.S.C. § 1322(a).

[^119]: The Supreme Court in *Washington v. Yakima,* 439 U.S. 463, 488
    n. 32, and 501 n.48 (1979), refused to address whether such
    jurisdiction was concurrent or exclusive.

[^120]: *See* Jimenez & Song, *supra* note 83*.*

[^121]: *Williams v. Lee*, 358 U.S. 217, 220 (1979).

[^122]: 448 U.S. 136 (1980).

[^123]: *See United States v. Wheeler,* 435 U.S. 313, 322, n. 18
    (1978)*. See also, e.g., Fisher v. District* Court, 424 U.S. 382
    (1976); *Santa Clara Pueblo v. Martinez*, 436 U.S. 49 (1978);
    *Montana v. United States*, 450 U.S. 544 (1981); *Brendale v.
    Confederated Tribes and Bands of the Yakima Indian Nation,* 492 U.S.
    408 (1989); *Duro v. Reina*, 495 U.S. 676 (1990).

[^124]: A review of case law suggests that there is inconsistency in
    defining where the cause of action arose in paternity establishment
    and child support cases. Some courts look at conception as the
    defining event. Other courts focus on where the custodial parent
    applied for public assistance.

[^125]: 450 U.S. 544 (1981).

[^126]: *Montana v. United States*, 450 U.S. 544, at 565 (1981). *See
    also* *Strate v. A-1 Contractors*, 520 U.S. 438 (1997). Citing the
    two exceptions in *Montana*, the *Strate* Court concluded that the
    Tribal court lacked subject matter jurisdiction over a civil action
    against allegedly negligent non-Indians, involving a traffic
    accident on a public highway running through Indian reservation
    land. *See also* *Nevada v. Hicks*, 533 U.S. 353 (2001). In
    *Nevada,* the Supreme Court concluded that the Tribal court lacked
    jurisdiction in a civil law suit brought by a Tribal member against
    State game wardens who had executed State court and Tribal court
    search warrants to search his on-reservation home for an
    off-reservation crime. The Court stated that the fact that the
    nonmember's activity occurred on Tribal land was not dispositive.
    Citing *Montana*, the Court concluded that the "Tribal authority to
    regulate State officers in executing process related to the
    violation, off reservation, of State laws is not essential to Tribal
    self-government or internal relations." In contrast, the Court found
    that the State's interest in execution of process was considerable.
    For a discussion of the impact of *Montana*, *see* Gould, *supra*
    note 44.

[^127]: *Montana v. United States* , 450 U.S. 544 at 564 (1981). *See
    also* *Nevada v. Hicks*, 533 U.S. 353 (2001).

[^128]: *Montana v. United States* , 450 U.S. 544 at 566 (1981). *See
    also* *Strate v. A-1 Contractors*, 520 U.S. 438 (1997). Citing the
    two exceptions in *Montana*, the *Strate* Court concluded that the
    Tribal Court lacked subject matter jurisdiction over a civil action
    against allegedly negligent non-Indians, involving a traffic
    accident on a public highway running through Indian reservation
    land.

[^129]: *Strate v. A-1 Contractors*, 520 U.S. 438 (1997).

[^130]: 532 U.S. at 657, n. 12. As noted by federal courts, "the tribe's
    interest in the political, economic, health, or welfare effects of a
    particular action is not enough, by itself, to meet this exception.
    . . . Otherwise, the exception would swallow the rule." *See, e.g.,
    County of Lewis v. Nez Perce Tribe*, 163 F.3d \_\_\_ (9^th^ Cir.
    1998).

[^131]: *See, e.g., Lemke v. Brooks*, 614 N.W.2d 242 (Minn. 2000).

[^132]: *See*, *e.g.*, *Teague v. Bad River* *Band of Lake Superior
    Tribe of Chippewa Indians*, 265 Wis.2d 64, 665 N.W.2d 899 (Wis.
    2003); *see also* N. Newton *et al.*, eds., Cohen's Handbook of
    Federal Indian Law § 6.04\[3\]\[c\] (2005 ed.).

[^133]: *See, e.g., South Dakota ex rel. Jealous of Him v. Mills,* 627
    N.W.2d 790 (S.D. 2001); *Harris v. Young*, 473 N.W.2d 141, 145 (S.D.
    1991).

[^134]: *See* W. Canby, American Indian Law in a Nutshell 192-194 (4^th^
    ed. 2004).

[^135]: In *Strate v. A-1 Contractors*, 520 U.S. 438, 453 (1977), the
    Court had stated: "As to nonmembers . . . a Tribe's adjudicative
    jurisdiction does not exceed its legislative jurisdiction. . . ."

[^136]: *Montana v. United States*, 450 U.S. 544 (1981).

[^137]: *Bad Horse v. Bad Horse,* 163 Mont. 445, 517 P.2d 893 (1974),
    *cert. denied* 419 U.S. 847 (1984).

[^138]: *In Interest of M.L.S.,* 157 Wis. 2d 26, 458 N.W.2d 541 (1990).

[^139]: *See State Securities, Inc. v. Anderson,* 84 N.M. 629, 506 P.2d
    786 (1973).

[^140]: *Accord Martin v. Denver Juvenile Court*, 493 P.2d 1093 (Colo.
    1972). Note that both of these cases were decided before the Supreme
    Court's ruling in *Nevada v. Hicks*, 533 U.S. 353 (2001).

[^141]: *See* *Dixon v. Picopa Constr. Co.*, 160 Ariz. 251, 772 P.2d
    1104 (1989).

[^142]: 194 Ariz. 442, 984 P.2d 528 (1999). Note that there are several
    Arizona appellate opinions arising from the original trial case.

[^143]: 194 Ariz. at 443-4, 984 P.2d at 529-30.

[^144]: *See, e.g., State v. Zaman*, 194 Ariz. 442, 984 P.2d 528 (1999).

[^145]: *Compare, e.g., State Sec., Inc. v. Anderson*, 506 P.2d 786
    (N.M. 1973); *Little Horn Bank*, 555 P.2d 211 (Mont. 1976); *LeClair
    v. Powers*, 632 P.2d 370 (Okla. 1981)(upholding State service of
    process on Indians while they are within the boundaries of the
    reservation) *with Francisco v. State*, 556 P.2d 1 (Ariz. 1976);
    *Tracy v. Superior Ct.,* 810 P.2d 1030 (Ariz. 1991) (disapproving of
    State service upon Indians in Indian country).

[^146]: *But see* Comment, *A World without Tribes? Tribal Rights of
    Self-Government and the Enforcement of State Court Orders in Indian
    Country,* 61 U. Chi. L. Rev. 707, 725 (1994), positing that
    application of State law impinges on Tribal sovereignty even when
    the Tribe has not explicitly addressed the issue.

[^147]: In *Nevada v. Hicks*, the State game warden had obtained a
    Tribal warrant, in addition to his State court warrant, and had
    asked Tribal authorities to accompany him when he served the process
    on Hicks in his home on the reservation.

[^148]: The Letter Opinion notes dicta in *Francisco v. State* in which
    the court noted that an otherwise invalid sheriff's service upon an
    Indian in Indian country "could have validly been effected through
    the Papago Indian authorities who are vested with power to serve
    process pursuant to Tribal law. 556 P.2d 1 at 2, n. 1 (1976).

[^149]: *See, e.g., Nenna v. Moreno,* 132 Ariz. 565, 647 P.2d 1163
    (1982); *State ex. rel. Flammond v. Flammond,* 190 Mont. 350, 621
    P.2d 471 (1980).

[^150]: *See, e.g*., Law and Order Code of the Fort McDowell Yavapai
    Community, Arizona, Section 1-7.Civil Jurisdiction, B (1)(b) (2000);
    Coquille Tribal Code, Tribal Court Ordinance 610.200(c)(1). The
    Coquille Tribal Code also asserts personal jurisdiction over persons
    who are eligible for Tribal enrollment, or who have consented to the
    court's jurisdiction by marriage to a Tribal member.

[^151]: *See, e.g*., Confederated Salish & Kootenai Tribes of the
    Flathead Reservation, Tribal Laws, 1-2-104(2)(a); Law and Order Code
    of the Fort McDowell Yavapai Community, Arizona, Section 1-7.Civil
    Jurisdiction, B (1)(a) (2000); Coquille Tribal Code, Chapter
    610.200(c)(3).

[^152]: Civil and Criminal Law and Order Code of Hualapai Tribe Ch. 1, §
    1.1 (1975).

[^153]: *See, e.g*., Sisseton-Wahpeton Sioux Tribe, Chapter 45 Act of
    Non-Domiciliaries, Section 45-01-01 Personal Jurisdiction by Act of
    Non-Domiciliaries.

[^154]: *See, e.g*., Crow Law and Order Code, 1-153, 1-154.

[^155]: *See, e.g*., Law and Order Code of the Kalispel Tribe of
    Indians, Ch. 3, 3-401.

[^156]: Nez Perce Tribal Code, Chapter 2-2, Rule 4(c).

[^157]: *Yakima v. Washington*, 439 U.S. 463, 470 n.7 (1979).

[^158]: H.R. Rep. No. 95-1386 at 19.

[^159]: *See* *Montana v. United States*, 450 U.S. 544 (1981). *See also
    Fisher v. District* Court, 424 U.S. 382 (1976).

[^160]: Rubin, *supra* note 7.

[^161]: Stoner and Orona, *supra* note 27.

[^162]: 45 C.F.R. § 302.70.

[^163]: 45 C.F.R. § 302.70.

[^164]: 45 C.F.R. § 309.100.

[^165]: 45 C.F.R. § 303.5(g)(2).

[^166]: 45 C.F.R. §§ 302.70(a)(5)(iv), (vii).

[^167]: 45 C.F.R. § 302.70(a)(11).

[^168]: 45 C.F.R. § 302.70(a)(5) and § 303.5(d) and (e).

[^169]: 45 C.F.R. §§ 302.70(a)(5)(v), (vi).

[^170]: 45 C.F.R. § 309.100(a)(3).

[^171]: 69 Fed. Reg. 16,638 at 16,658 (2004): "Examples of such a
    paternity determination would include a voluntary admission of
    paternity or circumstances under which the Tribe has other means of
    recognizing paternity under Tribal law. A Tribe, through its own
    custom, tradition or procedure, may recognize a man as the father or
    may preclude a man who holds himself out to be the father from
    challenging paternity. Similarly, a Tribe may have a conclusive
    presumption of paternity when a child is born to married parents or
    if a noncustodial parent has been validly served in a paternity
    proceeding and failed to contest paternity in such proceeding."

[^172]: 45 C.F.R. § 302.31.

[^173]: 45 C.F.R. § 309.100(a)(1).

[^174]: 45 C.F.R. § 309.100(d).

[^175]: 45 C.F.R. § 302.70(a)(5)(viii).

[^176]: 28 U.S.C. § 1738B.

[^177]: *See* 69 Fed. Reg. 16,658 (March 30, 2004).

[^178]: 45 C.F.R. § 302.70(a)(11).

[^179]: Office of Child Support Enforcement, U.S. Dept. of Health &
    Human Serv., Strengthening the Circle: Child Support for Native
    American Children at 40 \[hereinafter referred to as Strengthening
    the Circle\].

[^180]: 45 C.F.R. § 309.05.

[^181]: *See Marriage of Purnel v. Purnel*, 52 Cal. App. 4^th^ 527, 530,
    60 Cal. Rptr. 2d 667, 669 (1997).

[^182]: 453 N.W.2d 543, 544.

[^183]: *Id.*

[^184]: 453 N.W.2d 543, 544.

[^185]: *State v. W.M.B.*, 159 Wis. 2d 662, 465 N.W.2d 221 (1990)
    reached a similar conclusion, ruling that a State court may have
    concurrent jurisdiction to establish paternity. In *State v.
    W.M.B*., the parties and child were all members of the same tribe,
    who lived on the reservation. The action was a contempt proceeding
    in which the father attacked the underlying paternity order as void.
    Using a federal preemption and infringement analysis, the court
    first concluded that federal regulations cited by the respondent as
    establishing federal preemption of State court jurisdiction did not
    do so. It then examined whether State jurisdiction to establish
    paternity would infringe on the right of tribes to establish and
    maintain their Tribal government. It concluded that it would not.
    The court found that when paternity and child support were first
    established by a State trial court in 1977, there was no Tribal code
    that focused on paternity and child support and no Tribal court
    existed at the time. In a later Tribal court proceeding involving
    custody, the court noted that the Tribal court had not questioned
    the State's jurisdiction in the paternity and support proceeding.
    NOTE: The court mentions a 1976 Governor proclamation retroceding
    jurisdiction over the Menominee Indian Reservation "pursuant to
    federal law," but does not identify Public Law 280 by name.
    Wisconsin currently has Public Law 280 civil jurisdiction over all
    Indian country within the State, with the exception of the Menominee
    Reservation. See *supra* note 101.

[^186]: 352 S.E.2d 413 (N.C. 1987).

[^187]: 352 S.E.2d at 418-9. *Accord Jackson County Smoker v. Smoker,
    Jr.*, 341 N.C. 182, 459 S.E.2d 789 (1995).

[^188]: 592 N.W.2d 184, 186, citing *McKenzie County Social Serv. Bd. v.
    V.G*., 392 N.W.2d 399, 402 (N.D. 1986).

[^189]: *See McKenzie County Social Servs. Bd. v. V.G.*, 392 N.W.2d 399
    (N.D. 1986); *McKenzie County* *Social Serv. Bd. v. C.G.,* 633
    N.W.2d 157 (N.D. 2001).

[^190]: *Id.*

[^191]: *See, e.g., South Dakota ex rel. Jealous of Him v. Mills*, 627
    N.W.2d 790 (2001); *Harris v. Young*, 473 N.W.2d 141, 144 (S.D.
    1991) (citing *Fisher v. Dist. Court of Sixteenth Jud. Dist*., 424
    U.S. 382 (1976); *Wells v.* *Wells*, 451 N.W.2d 402, 405 (S.D.
    1990)).

[^192]: 21 Indian L. Rptr. 6125 (Navajo 1994).

[^193]: 21 Indian L. Reptr. 6125, 6127.

[^194]: *State v. W.M.B.*, 159 Wis. 2d 662, 465 N.W.2d 221 (1990). At
    the time of the State court action, Wisconsin had retroceded its
    Public Law 280 jurisdiction over the Menominee Tribe. See *supra*
    notes 101 and 185.

[^195]: 465 N.W.2d 221, 223.

[^196]: *See Marriage of Purnel v. Purnel*, 52 Cal. App. 4^th^ 527, 530,
    60 Cal. Rptr. 2d 667, 669 (1997).

[^197]: *Accord In re M.L.M.*, 529 N.W.2d 184 (N.D. 1995) (where both
    parents were Tribal members and conception occurred on the
    reservation, the fact that the child was born off the reservation,
    that the mother lived off the reservation for a period of time, and
    that the alleged father lived off the reservation and was employed
    off reservation did not outweigh the right of Indians to govern
    themselves).

[^198]: Unlike the facts in *Swayney*, upon which the appellate court
    had concluded that the Tribe's interest [would]{.underline} be
    infringed if the State court asserted jurisdiction over paternity,
    the court in *Anderson* concluded that the Tribe's interest would
    not be infringed if the State court asserted jurisdiction in this
    case. Here the mother and child lived off the reservation, the
    father worked off the reservation, and the father had submitted to
    State administered genetic testing.

[^199]: It is interesting that the court considered the cause of action
    to have arisen where the mother applied for public assistance as
    opposed to where conception occurred. Because the court determined
    that the cause of action arose outside of Indian country,
    Minnesota's Public Law 280 jurisdiction did not come into play. The
    court did not mention Public Law 280 in its analysis.

[^200]: *See Marriage of Purnel v. Purnel*, 52 Cal. App. 4^th^ 527, 530,
    60 Cal. Rptr. 2d 667, 669 (1997).

[^201]: *See, e.g., Montana v. United States*, 450 U.S. 544 (1981);
    *Strate v. A-1 Contractors,* 520 U.S. 438 (1997); *Nevada v. Hicks*,
    533 U.S. 353, 377 n. 2 (2001).

[^202]: *Accord State v. Zaman*, 190 Ariz. 208, 946 P.2d 459 (1997),
    *cert. denied*, 522 U.S. 1148 (1998) ("As long as the Indian party
    selects the State forum, there is nothing for the infringement test
    to protect against." 946 P.2d at 461. The putative father was a
    non-Indian who had argued that the Indian mother's State paternity
    action infringed upon the tribe's interest in self-government.)

[^203]: 649 N.W.2d at 576.

[^204]: *State v. Zaman,* 190 Ariz. 208, 946 P.2d 459 (1997), *cert.
    denied*, 522 U.S. 1148 (1998). In so holding, the Supreme Court
    reversed the Court of Appeals decision in *State v. Zaman*, 187
    Ariz. 81, 927 P.2d 347 (1996) (*Zaman I*).

[^205]: *Montana v. United States*, 450 U.S. 544 (1981), *Nevada v.
    Hicks*, 533 U.S. 353 (2001). *Montana* had held that, absent federal
    legislation, Indian Tribes lack civil authority over the conduct of
    non-members on non-Indian land within a reservation, subject to two
    exceptions: (1) the nonmember entered into a consensual relationship
    with the Tribe or its members, or (2) the nonmember's activity
    directly affects the Tribe's political integrity, economic security,
    health, or welfare. In *Nevada*, the Court applied the *Montana*
    test in a case involving conduct by a nonmember on Indian land
    within the reservation.

[^206]: 549 N.W.2d 507 (Iowa 1996).

[^207]: The question in this case was not whether the State court had
    jurisdiction, but whether jurisdiction was with the Hopi Tribal
    Court or the Hopi Village of Upper Moenkopi, which was the residence
    of the alleged father. However, the holding of the court is relevant
    because of its examination of how the law treated disputes involving
    nonmember Indians.

[^208]: *See Montana v. United States*, 450 U.S. 544 (1981), which
    identifies two exceptions where Tribal civil jurisdiction can exist
    over non-Indians on non-Indian land.

[^209]: 45 C.F.R. § 303.4(b).

[^210]: 45 C.F.R. § 303.4(d).

[^211]: 42 U.S.C. § 667(b)(2).

[^212]: 45 C.F.R. § 302.56 (guideline requirements that a State must
    meet); 45 C.F.R. § 309.105 (guideline requirements that a Tribe or
    Tribal organization must meet)

[^213]: 45 C.F.R. § 302.56(g).

[^214]: 45 C.F.R. § 302.56(e) (requirement governing State IV-D
    programs); 45 C.F.R. § 309.105(4) (requirement governing Tribal IV-D
    program).

[^215]: 52 Cal. App. 4^th^ 527, 60 Cal. Rptr. 2d 667 (1997).

[^216]: 52 Cal. App. 4^th^ at 539, 60 Cal. Rptr. 2d at 675.

[^217]: 45 C.F.R. § 309.105(a)(3).

[^218]: 69 Fed. Reg. 16,638 at 16,658 (March 30, 2004).

[^219]: 45 C.F.R. § 309.05.

[^220]: 69 Fed. Reg. 16,638 at 16,659 (March 30, 2004).

[^221]: 45 C.F.R. § 309.105(a)(3).

[^222]: However, the non-cash payments can be credited toward arrears,
    as well as current support obligations. 69 Fed. Reg. at 16,659.

[^223]: *See* 69 Fed. Reg. at 16,659.

[^224]: *Id.*

[^225]: 21 Indian L. Reptr. 6001 (No. CV-02-02-93 N. Pls. Intertr. Ct.
    App., Aug. 31, 1993).

[^226]: 28 U.S.C. § 1360.

[^227]: 227 Cal. App. 3d 487, 277 Cal. Rptr. 841 (1991).

[^228]: 409 N.W.2d 460 (Iowa 1987).

[^229]: *But see McKenzie County Social Serv. Bd. v. V.G.*, 392 N.W.2d
    399 (N.D. 1986) (the court, while acknowledging that county was a
    non-Indian, held that county's interest was only through an
    assignment of support rights from the Indian mother. The court
    considered the support action to be one between two Indians, and
    based its decision, in part, on an analysis of Public Law 280.)
    However, since the *McKenzie* decision was issued in 1986, North
    Dakota has enacted legislation confirming the separate interest of
    the people of the State of North Dakota in IV-D cases. See N.D.
    Century Code § 14-09-09.26.

[^230]: 409 N.W.2d at 463, 464.

[^231]: *See State ex rel. LeCompte v. Keckler*, 628 N.W.2d 749, 752
    (S.D. 2001).

[^232]: 352 S.E.2d 413 (N.C. 1987).

[^233]: Aid for Families with Dependent Children. AFDC was the public
    assistance program that was replaced in 1996 by Temporary Assistance
    for Needy Families (TANF).

[^234]: 352 S.E.2d at 420.

[^235]: *Jackson County Child Support Enforcement Agency, ex rel. Smoker
    v. Smoker*, 341 N.C. 182, 459 S.E.2d 789 (1995).

[^236]: The Tribal order awarded child custody to the wife and property
    to the wife with no support to be paid by the father. The North
    Carolina Supreme Court ruled that the Tribal court was available for
    the State to seek recovery of AFDC payments.

[^237]: *Billie v. Abbott*, 16 Indian L. Rptr. 6021 (Navajo Supreme
    Court Nov. 10, 1988)

[^238]: *Billie v. Abbott*, 16 Indian L. Rptr. 6021, 6023 (Navajo
    Supreme Court Nov. 10, 1988).

[^239]: *Id.*

[^240]: *See Marriage of Purnel v. Purnel*, 52 Cal. App. 4^th^ 527, 530,
    60 Cal. Rptr. 2d 667, 669 (1997).

[^241]: *See State ex rel. LeCompte v. Keckler*, 628 N.W.2d 749, 752
    (S.D. 2001).

[^242]: *See Rolette County Social Serv. Bd. v. B.E.*, 697 N.W.2d 333
    (N.D. 2005).

[^243]: 352 S.E.2d 413 (N.C. 1987).

[^244]: In this case, the defendant and noncustodial parent was the
    mother who acknowledged her support obligation.

[^245]: *Rolette County,* 697 N.W.2d 333 (N.D. 2005)

[^246]: *See* North Dakota Attorney General's Opinion 2000-F-07

[^247]: *See Marriage of Purnel v. Purnel*, 52 Cal. App. 4^th^ 527, 530,
    60 Cal. Rptr. 2d 667, 669 (1997).

[^248]: *See State of Iowa, ex. rel. Dept. of Human Serv. v.
    Whitebreast,* 409 N.W.2d 460 (Iowa 1987).

[^249]: *See, e.g., McKenzie County, Social Serv Bd. v. V .G*, 392
    N.W.2d 399 (N.D. 1986), *cert. denied,* 480 U.S. 930 (1987).

[^250]: *See, e.g., Montana v. United States*, 450 U.S. 544 (1981);
    *Strate v. A-1 Contractors,* 520 U.S. 438 (1997); *Nevada v. Hicks*,
    533 U.S. 353, 377 n. 2 (2001).

[^251]: 450 U.S. 544 (1981).

[^252]: 520 U.S. 438 (1997

[^253]: 533 U.S. 353 (2001).

[^254]: See *Nevada v. Hicks*, 533 U.S. at 358: *Strate v. A-1
    Contractors*, 520 U.S. 438, 446 (1997); *Montana v. United States*,
    450 U.S. 544 (1981).

[^255]: *Supra* note 215.

[^256]: *County of Inyo v. Jeff*, 227 Cal. App. 3d 487, 277 Cal. Rptr.
    841 (1991).

[^257]: 52 Cal. App. 4^th^ 527, 536, 60 Cal. Rptr. 2d 667, 673.

[^258]: *See also United States ex rel. Cobell v. Cobell*, 503 F.2d 790
    (9^th^ Cir. 1974).

[^259]: 52 Cal. App. 4^th^ 527, 538, 60 Cal. Prtr. 2d 667, 674.

[^260]: 99 N.M. 500, 660 P.2d 590 (1983).

[^261]: *See* Elrod, *Adding to the Basic Support Obligation*, in
    Guidelines: The Next Generation [(M.]{.smallcaps} Haynes, ed., U.S.
    Dept. of Health & Human Serv. 1994)\[hereinafter Guidelines: The
    Next Generation\].

[^262]: 45 C.F.R. § 302.56(c)(3).

[^263]: An analysis of health care provisions is contained in L. Morgan,
    Child Support Guidelines: Interpretation and Application (Aspen Law
    and Business, Supp. 2000) \[hereinafter Child Support Guidelines\].

[^264]: *See* guidelines of Alabama, Colorado, Delaware, Kentucky, and
    Maine.

[^265]: Ala. R. Jud. Admin. 32 (2001).

[^266]: *See* N.J.Ct. R., Appendix IX-A (2005).

[^267]: *See*, *e.g.,* Fla. Stat. Ann. § 61.30(8) (2005).

[^268]: Hawaii Family Court Child Support Guidelines, Instructions, p.7
    (1998).

[^269]: Those States are Colorado, District of Columbia, Indiana,
    Kentucky, Louisiana, Maryland, Missouri, New Mexico, North Carolina,
    Ohio, South Carolina, Vermont, Virginia, Washington, and West
    Virginia.

[^270]: Kentucky - \$100; Maine - \$ 250 per child or group of children
    per calendar year (2001); New Mexico - \$ 100; Ohio - \$ 100; South
    Carolina - \$250; Vermont - \$ 200 (but statute does not State
    whether that threshold is per child).

[^271]: Examples of this approach are found in the guidelines of
    Colorado and Maryland.

[^272]: Indiana -- 6 percent (2004); Washington -- 5 percent (2000).

[^273]: *See, e.g*., Alabama (guideline assumes unreimbursed medical
    costs of \$ 200 per family of four per year); Iowa (CP pays first \$
    250 per year per child of routine medical and dental expenses up to
    \$ 500 per year for all children. Additional amounts are apportioned
    between parents) (2004); Massachusetts (CP pays first \$100 per
    child per year. For routine medical and dental expenses above that
    amount, court allocates between parties) (2002); New Jersey (\$250
    per child per calendar year) (2005); Pennsylvania (\$250 per child
    per year); Virginia (any reasonable and necessary unreimbursed
    medical or dental expenses in excess of \$250 per calendar year per
    child) (2005).

[^274]: *See* Child Support Guidelines, *supra* note 263, Table 3-2.
    *See also* Notar & Schmidt, *State Child Support Guideline Treatment
    of Children's Health Care Needs*, in Guidelines: The Next
    Generation, *supra* note 261.

[^275]: 42 U.S.C. § 652(f); 45 C.F.R. § 302.56(c)(3).

[^276]: 45 C.F.R. §§ 303.30, 303.31.

[^277]: 45 C.F.R. §§ 302.80, 303.30, 303.31. The meaning of "reasonable
    cost" has evolved. 45 CFR 303.31 (a)(1) now reads, \" Health
    insurance is considered reasonable in cost if it is employment
    related or other group health insurance, regardless of service
    delivery mechanism."

[^278]: P.L. No. 103-66 (1993).

[^279]: A "QMCSO" is a medical support order that creates the existence
    of an "alternative recipient's" right to receive benefits under a
    group plan. An "alternative recipient" is the child of a participant
    or beneficiary of a plan.

[^280]: In 1974, Congress enacted the Employee Retirement Income
    Security Act (ERISA) to help protect employer-provided pension and
    health benefits and to encourage employers to establish such plans.
    ERISA regulates most privately sponsored pension plans and health
    benefit plans. The law is important for child support purposes
    because it preempts State laws and regulations governing health
    insurance and employee benefit plans, including employer self-funded
    health insurance plans. ERISA also imposes requirements regarding
    information that must be provided to plan participants and
    beneficiaries, internal procedures for determining benefit claims,
    and standards of conduct of those responsible for plan management.

[^281]: P.L. No. 104-193 (1996).

[^282]: 42 U.S.C. § 666(a)(19)(A).

[^283]: P.L. No. 105-200 (1998).

[^284]: 29 C.F.R. § 2590.

[^285]: Section 401 of P.L. No. 105-200 (1998).

[^286]: The Working Group's report, *21 Million Children's Health: Our
    Shared Responsibility,* can be found on the Federal Office of Child
    Support Enforcement (OCSE) web site at
    http://www.acf.dhhs.gov/programs/cse/rpt/medrpt/index.html.

[^287]: 29 U.S.C. § 1169(a).

[^288]: 45 C.F.R. § 303.32.

[^289]: 29 U.S.C. § 1169(a).

[^290]: Section 466(a)(19) of Title IV-D of the Social Security Act, as
    amended by section 401(c)(3) of CSPIA, codified at 42 U.S.C. §
    666(a)(19)(B).

[^291]: 45 C.F.R. § 303.32(c).

[^292]: 69 Fed. Reg. 16,638 at 16,660.

[^293]: *Id.*

[^294]: *See* C. Barbero, The Federal Trust Responsibility:
    Justification for Indian-Specific Health Policy (2005).

[^295]: Section 351 of the Personal Responsibility and Work Opportunity
    Act of 1996, P.L. No. 104-193, codified at 42 U.S.C. § 666(a)(10).

[^296]: *Id.*

[^297]: 42 U.S.C. § 666(a)(10)(A)(i)(l).

[^298]: 42 U.S.C. § 666(a)(10)(A)(i)(ll).

[^299]: 42 U.S.C. § 666(a)(10)(A)(i)(III).

[^300]: 42 U.S.C. § 666(a)(10)(A)(ii).

[^301]: 45 C.F.R. § 303.8.

[^302]: 45 C.F.R. §§ 309.15 and 309.90.

[^303]: No. SC-CV-13-02 (Supreme Court of the Navajo Nation Sept. 3,
    2003).

[^304]: Section 5537 of P.L. No. 105-33 (1997), amending Section 321 of
    P.L. No. 104-193 (1996) (codified at 42 U.S.C. § 666(f)). UIFSA
    (1996) is located at 9 Pt. 1B U.L.A. 235 (1999). It can also be
    accessed through the website of the National Conference of
    Commissioners on Uniform State Laws: www.nccusl.org. UIFSA was
    amended in 2001 but there is currently no federal funding mandate
    that States enact the 2001 amendments.

[^305]: P.L. No. 103-383 (1994) (codified at 28 U.S.C. § 1738B). *See
    also* 69 Fed. Reg. 16,638 at 16,658.

[^306]: 28 U.S.C. § 1738B(b).

[^307]: Section 105 of UIFSA and 28 U.S.C. § 1738B(e), (f).

[^308]: The order issued by the child's home State, as defined by the
    Act, is the controlling order. If no issuing State is the child's
    home State, the most recent order is the controlling order. Section
    207 of UIFSA.

[^309]: 69 Fed. Reg. 16,638 at 16,665.

[^310]: The term "tribunal" refers to a court and/or administrative
    agency.

[^311]: 42 U.S.C. § 666(a)(8)(B)(ii); 45 C.F.R. § 303.100(g).

[^312]: 45 C.F.R. § 303.100(b).

[^313]: P.L. No. 100-485 (1988).

[^314]: 42 U.S.C. § 666(b)(3)(A); 45 C.F.R. § 303.100(b)(2).

[^315]: 42 U.S.C. § 666(b)(8).

[^316]: Unif. InterState Family Support Act (1996)\[hereinafter UIFSA\],
    9 Pt. 1B U.L.A. 235 (1999).

[^317]: UIFSA §§ 501 -- 506 (amended 2001), 9 Pt. 1A U.L.A. 336 -- 346
    (1999).

[^318]: 45 C.F.R. § 303.100(c)(1).

[^319]: 45 C.F.R. § 303.100(c).

[^320]: *Id*.

[^321]: 42 U.S.C. §§ 666(a)(8)(B) and 666(b)(6)(A)(ii).

[^322]: P. L. No. 99-509 (1986).

[^323]: 42 U.S.C. § 666(a)(4)(A).

[^324]: 42 U.S.C. § 666(a)(4)(B).

[^325]: 42 U.S.C. § 652(a)(11)(B)and 42 U.S.C. § 654(9)(E). The Notice
    of Lien form and accompanying instructions are available on the OCSE
    web site at www.acf.dhhs.gov/programs/cse.

[^326]: *See* 69 Fed. Reg. 16,638 at 16,656.

[^327]: *See* 69 Fed. Reg. 16,638 at 16,654.

[^328]: 42 U.S.C. § 666(a)(17).

[^329]: P.L. No. 105-200 (1998).

[^330]: P.L. No. 98-378 (1984), codified at 42 U.S.C. § 666(a)(3)(A).

[^331]: 42 U.S.C. § 666(a)(16).

[^332]: 42 U.S.C. § 666(a)(7)(A).

[^333]: P.L. No. 98-378 (1984), codified at 42 U.S.C. § 666.

[^334]: 45 C.F.R. § 309.110(b).

[^335]: 45 C.F.R. § 309.110(l).

[^336]: 45 C.F.R. § 309.110(c).

[^337]: 45 C.F.R. § 309.110(m).

[^338]: 45 C.F.R. § 309.110(k).

[^339]: 69 Fed. Reg. 16,638 at 16,661.

[^340]: 45 C.F.R. § 309.110(i).

[^341]: 45 C.F.R. § 309.110(h).

[^342]: 45 C.F.R. § 309.110.

[^343]: *See* 69 Fed. Reg. 16,638 at 16,662.

[^344]: *See* 69 Fed. Reg. 16,638 at 16,661.

[^345]: *Id.*

[^346]: U.S. Constitution art. IV, § 1, cl. 1.

[^347]: The U.S. Constitution does not apply to Tribes. *Talton v.
    Mayers*, 163 U.S. 376 (1896).

[^348]: *See, e.g.,* Gould, *Tough Love for Tribes: Rethinking
    Sovereignty After Atkinson and Hicks*, 37 New Eng. L. Rev. 669 n. 18
    (2003); Leeds, *Cross-Jurisdictional Recognition and Enforcement of
    Judgments: A Tribal Court Perspective*, 76 N.D.L. Rev. 311 (2000);
    Stoner and Orona, *supra* note 27.

[^349]: P.L. No. 103-383 (1994) (codified at 28 U.S.C. § 1738B).

[^350]: *See* OCSE-AT-02-03 on the applicability of FFCCSOA to States
    and Tribes.

[^351]: A Tribal order that did not State a specific dollar amount of
    support and did not provide criteria by which to judge whether the
    parties were fulfilling their obligations was not a recognizable
    child support order to which the court must give full faith and
    credit or extend comity. *John v. Baker*, Alaska Supreme Court No.
    S-11176 (No. 596 decided Dec. 16, 2005). The Alaska Supreme Court
    stated that a Tribal child support order need not match the format
    of a support order issued by State courts in order to be recognized.
    However, if the order simply directed the parties "to help each
    other financially," it was not concrete enough to be enforceable.
    The court pointed out that the issuing Northway Village Tribal
    court, in a brief filed in a related custody proceeding, had also
    maintained that its custody order did not include child support.

[^352]: *See, e.g., Hanson v. Grandberry*, Puyallup Tribal Court (No. CV
    98-004 June 8,
    1999)(http://www.Tribal-institute.org/opinions/1999.NAPU.0000008.htm).
    *See also Smith v. Hall*, 2005 N.D. 215 (filed Dec. 20, 2005).

[^353]: *Hilton v. Guyot*, 159 U.S. 113 (1894).

[^354]: S.D. Codified Laws Ann § 1-1-25. *See also* N.D. Rule of Court
    7.2.

[^355]: 30 Indian L. Rptr. 105 (Mashantucket Pequot Tribal Court, No.
    MPTC-CV-2002-182 April 23, 2003).

[^356]: *See Hogdon v. Nelson,* No. SC-CV-19-94 (Navajo Supreme Court
    8/23/1995). Accessible through
    www.Tribalresourcecenter.org/opinions.

[^357]: *FMC v. Shoshone-Bannock Tribes,* 905 F.2d 1311, 1314 (9^th^
    Cir. 1990).

[^358]: *See, e.g*., 9 Navajo Tribe Code tit 9, § 1303.

[^359]: *Smith v. Hall*, 2005 N.D. 215 (filed Dec. 20, 2005).

[^360]: *See, e.g*., *Joe v. Marcum*, 621 F.2d 358 (10^th^ Cir. 1980);
    *Begay v. Roberts*, 807 P.2d 1111 (Ariz. App. 1990).

[^361]: *Joe v. Marcum,* 621 F.2d at 361-62.

[^362]: *Begay v. Roberts*, 807 P.2d at 1111, 1115 (Ct. App. 1990).

[^363]: *Williams v. Lee,* 358 U.S. 217 (1959).

[^364]: *Montana v. United States,* 450 U.S. 544 (1981).

[^365]: 25 U.S.C. § 1322(b) excludes trust property from execution.

[^366]: *See Calista Corp. v. DeYoung*, 562 P.2d 338 (Alaska 1977)
    (allowed State with Public Law 280 jurisdiction to collect child
    support arrears by obtaining cash distributions from stock in
    corporations formed pursuant to the Native Claims Settlement Act).

[^367]: 247 Mont. 465, 808 P.2d 467 (1991).

[^368]: *Id*. at 473.

[^369]: *See* OCSE-IM-02-01 Income Withholding from Federal Employees
    Working on Indian Reservations.

[^370]: *See Joe v. Marcum,* 621 F.2d 358 (10^th^ Cir. 1980) and *Begay
    v. Roberts,* 7 P.2d 1111 (1990).

[^371]: 45 C.F.R. § 309.110(n).

[^372]: 45 C.F.R. § 309.110(n).

[^373]: Puyallup Tribal Court (No. CV 98-004 June 8,
    1999)(http://www.Tribal-institute.org/opinions/1999.NAPU.0000008.htm).

[^374]: P.L. No. 104-193.

[^375]: P.L. No. 105-33.

[^376]: 69 Fed. Reg. 16,638 (Mar. 30, 2005) (to be codified at 45 C.F.R.
    Part 309).

[^377]: 69 Fed. Reg. 16,638 (Mar. 30, 2005).

[^378]: Public Law No. 104-193, 110 Stat. at 2256 (codified as amended
    at 42 U.S.C. § 654(33)). According to OCSE-AT-98-21 (July 28, 1998),
    it is not necessary that the Tribe comply with every federal IV-D
    regulation in order to qualify for a cooperative agreement with a
    State IV-D agency.

[^379]: 54 Fed. Reg. 30,222 (July 19, 1989), as amended at 61 Fed. Reg.
    67,240 (Dec. 20, 1996).

[^380]: OCSE-AT-98-21 (July 28, 1998).

[^381]: *Id.*

[^382]: 54 Fed. Reg. 30,223 (July 19, 1989).

[^383]: *See* OCSE-AT-98-21 on cooperative agreements.

[^384]: Strengthening the Circle, *supra* note 179 at 10.

[^385]: *See* American Indian Law Center, State/Tribal Agreements: A
    Comprehensive Study (1981).

[^386]: For an overview of options for overcoming jurisdictional
    barriers, *see* J. Mickens, Toward a Common Goal: Tribal and State
    Intergovernmental Agreements for Child Support Cases (State Justice
    Institute 1994).

[^387]: Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588 (codified
    as amended at 18 U.S.C.§ 1162, 25 U.S.C. §§ 1321-26, 28 U.S.C. §
    1360).

[^388]: Act of August 8, 1958, Pub. L. 85-615, 72 Stat. 545 (codified as
    amended at 18 U.S.C.§ 1162, 25 U.S.C. §§ 1321-26, 28 U.S.C. § 1360).

[^389]: Act of November 25, 1970, Pub. L. 91-523, 84 Stat. 1358
    (codified as amended at 18 U.S.C.§ 1162, 25 U.S.C. §§ 1321-26, 28
    U.S.C. § 1360).