Authority of Indian Tribal Court to Issue

Garnishment Writs Under 42 U.S.C. § 662(e)

A n In d ia n trib al c o u r t is a “ c o u rt o f c o m p e te n t ju ris d ic tio n " fo r p u rp o se s o f issuing 

g a rn is h m e n t w rits u n d e r 42 U .S .C . § 662(e), if it h a s th e p o w e r u n d e r trib al la w to issue 

ju d g m e n ts a w a rd in g c h ild s u p p o rt o r alim o n y .

February 28, 1980

MEMORANDUM OPINION FOR TH E ASSOCIATE GENERAL 

COUNSEL, OFFICE OF PERSONNEL MANAGEMENT

This responds to your request for our opinion whether the Yakima 

Indian Nation Tribal Court is a “court of competent jurisdiction” for 

purposes of 42 U.S.C. § 662(e), as implemented by the Office of Personnel Management’s proposed regulations. 44 Fed. Reg. 60301 (1979) (to 

be codified in 5 C.F.R. 581.101-581.501). In our opinion, a tribal court 

that establishes garnishment procedures may qualify as a court of competent jurisdiction if it had the power to issue the underlying judgment 

awarding child support or alimony. Absent the facts of a particular 

case, we do not decide whether any particular tribal court is a “court 

of competent jurisdiction.”

In 1975, Congress waived the sovereign immunity of the United 

States in proceedings for enforcement of writs of garnishment -issued to 

enforce orders for child support or alimony. Pub. L. No. 93-647, 

§ 101(a), 88 Stat. 2357, 42 U.S.C. § 659. Prior to that Act, the pay of 

federal employees was not subject to attachment for purposes of enforcing court orders, including orders for child support and alimony. See

Buchanan v. Alexander, 45 U.S. (4 How.) 20 (1846); Applegate v. Applegate, 39 F. Supp. 887, 889-90 (E.D. Va. 1941). Reflecting the “importance the Congress attributes to support payments,” a bill recommended 

by the Senate Committee on Finance in 1975 provided that the money 

“based upon remuneration for employment” of federal employees, including military personnel, would be subject to garnishment in support 

and alimony cases. S. Rep. No. 1356, 93d Cong., 2d Sess. 53-54 (1974). 

The conference committee adopted this language. H.R. Rep. No. 1643, 

93d Cong., 2d Sess. 23 (1974). As enacted, this provision states:

Notwithstanding any other provision of law, effective 

January 1, 1975, moneys (the entitlement to which is 

based upon remuneration for employment) due from, or

450
payable by, the United States (including any agency or 

instrumentality thereof and any wholly owned Federal 

corporation) to an individual, including members of the 

armed services, shall be subject, in like manner and to the 

same extent as if the United States were a private person, 

to legal process brought for the enforcement, against such 

individual of his legal obligations to provide child support 

or make alimony payments.

42 U.S.C. § 659. “Legal process” was not defined in the Act.

In 1977, Congress clarified this law by authorizing the issuance of 

regulations to administer the law, providing specific conditions and 

procedures, and defining the terms used in the garnishment statute. 42 

U.S.C. §§661-662. See H.R. Rep. No. 263, 95th Cong., 1st Sess. 35

(1977). It defined legal process as follows:

The term “legal process” means any writ, order, summons, or other similar process in the nature of garnishment, which—

(1) is issued by (A) a court of competent jurisdiction 

within any State, territory, or possession of the United 

States, (B) a court of competent jurisdiction in any foreign country . . . , or (C) an authorized official pursuant 

to an order of such a court of competent jurisdiction or 

pursuant to State or local law, and

(2) is directed to, and the purpose of which is to 

compel, a governmental entity, which holds moneys 

which are otherwise payable to an individual, to make a 

payment from such moneys to another party in order to 

satisfy a legal obligation of such individual to provide 

child support or make alimony payments.

42 U.S.C. § 662(e) (1976 ed., Supp. IV 1980). The question posed is 

whether an Indian tribal court is a “court of competent jurisdiction” for 

the purposes of this section.

Garnishment is a purely statutory proceeding. See, e.g., Farmers Ins.

Exchange v. Ledesma, 214 F.2d 495, 497-98 (10th Cir. 1954); Mahomet

v. Hartford Ins. Co., 3 Wash. App. 560, 477 P.2d 191 (1970). The 

federal statute allowing garnishment of federal wages does not create a 

right of action, it merely waives sovereign immunity and allows enforcement pursuant to laws governing the court in question. Kelley v. 

Kelley, 425 F. Supp. 181, 183 (W.D. La. 1977); Harris v. Harris, 40 N.C. 

App. 26, 252 S.E.2d 95, 96-97 (1979). Accordingly, it has been held 

that a right to subject an employee’s wages to the claims of the plaintiff 

must exist under state law. Diaz v. Diaz, 568 F.2d 1061, 1063 n.l (4th 

Cir. 1977). A tribal court can be a court of competent jurisdiction for

451
purposes of issuing garnishment writs, therefore, only if tribal law 

creates a right of garnishment.

A writ of garnishment for purposes of § 659 must be based on a valid 

judgment that the funds are due and owing to the plaintiff. Accordingly, the court issuing the underlying judgment must have had both 

subject matter jurisdiction and personal jurisdiction over the parties. It 

is clear that many tribal courts, including the Yakima Indian Nation 

Tribal Court, are courts of competent jurisdiction in domestic relations 

cases. Confederated Tribes and Bands o f the Yakima Indian Nation v. 

Washington, 608 F.2d 750, 752 (9th Cir. 1979). It has been held that the 

power to regulate the domestic relations of its members is among the 

powers which tribes possess by virtue of their quasi-sovereign status. 

See Fisher v. District Court, 424 U.S. 382, 390 (1976); United States v. 

Quiver, 241 U.S. 602, 603-04 (1916); Conroy v. Conroy, 575 F.2d 175, 

181 —82 (8th Cir. 1978). In Fisher, the Court ruled that tribal jurisdiction 

over a proceeding for adoption, by Indians, of a son of Indian parents, 

where all parties resided on the reservation, was exclusive. 424 U.S. at 

389. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978), the 

Court noted that tribal courts have repeatedly been recognized as 

appropriate forums for the exclusive adjudication of disputes affecting 

important personal and property interests of both Indians and nonIndians.

In light of these holdings, it must be recognized that many tribal 

courts are courts of competent jurisdiction for purposes of alimony and 

child support decrees. The federal garnishment statute, which defines 

“child support” and “alimony,” refers to judgments “issued in accordance with applicable State law by a court of competent jurisdiction.” 42 

U.S.C. § 662(b) and (c) (1976 ed., Supp. IV 1980) (emphasis added). We 

do not read this definition to exclude tribal court judgments, however. 

There is no evidence that Congress meant to exclude tribal law. The 

committee reports cited above do not discuss the question of tribal 

court jurisdiction. It is likely that the issue simply did not arise. The 

intent of the law, however, was to remove a barrier against garnishment of federal wages where a valid judgment decreed that alimony or 

child support was due. See S. Rep. No. 1356, 93d Cong., 2d Sess. 53-54 

(1974). It would defeat the intent of the law, and undermine the integrity of tribal court judgments, to refuse to recognize them as valid 

judgments under the garnishment statute.

In sum, we see no legitimate basis either for denying the benefits of 

the federal wage garnishment law to Indian litigants or for requiring 

them to seek a garnishment writ in state courts. If the tribal court had 

jurisdiction over the underlying suit, and if a garnishment right is 

created by tribal law, then the tribal court should be considered a court 

of competent jurisdiction for purposes of 42 U.S.C. § 662(e) (1976 ed., 

Supp. IV 1980).

452
We note that we do not intend to suggest that the federal garnishee 

or its agents must examine the jurisdictional basis for the underlying 

judgment. Section 659(0 provides:

Neither the United States, any disbursing officer, nor governmental entity shall be liable with respect to any pay- . 

ment made from moneys due or payable from the United 

States to any individual pursuant to legal process regular 

on its face, if such payment is made in accordance with 

this section and the regulations issued to carry out this 

section.

Federal courts have refused to entertain suits against federal defendants 

filed by plaintiffs alleging that the defendants recognized invalid state 

court judgments. Overman v. United States, 563 F.2d 1287, 1291-92 (8th 

Cir. 1977) (held that waiver of sovereign immunity did not include suit 

against United States to challenge validity of garnishment based on 

allegedly fraudulent divorce decree); Jizmerjian v. Department o f the Air

Force, 457 F. Supp. 820, 823-24 (D.S.C. 1978) (held that 42 U.S.C. 

§ 659(0 insulates the United States from suit challenging garnishment 

based on allegedly invalid alimony decree). If the garnishment is pursuant to “legal process regular on its face,” and the federal statute and 

regulations are followed, you need inquire no further.

L e o n U l m a n

Deputy Assistant Attorney General

Office o f Legal Counsel

453