Il DI.Eili CIVIL JUl IS ICTIOl! r-r·oi'._, ,, .._.l,' r \.. ... ~ J..... . ..,J · - ri.:~..:l'lCC..L 000!19 ,,, '1 ·' 011 - ~ 1 '-J·~· . J Hl<.lL..li '-'C.'I--' American Indian Civil Jurisdiction Melanie I. McKenzit 465-29-2776 Professor Benson American Indian Law Historical BacJ~qround Tribal jurisdiction gives Indians the needed protection from hostile also augments cultural and state the law enforcement. Indian economic Tribal governmental programs which jurisdiction structure build a so that future for Indian people can flourish without destroying their cultural identity. "Indians, not unlike the Jews in Israel, see jurisdiction as an essential force necessary to preserve a geographic and cultural core." 1 Most problems in Indian law emanate from jurisdictional . 2 d 1.sputes. Th e . scenar1.o factual which gave rise Supreme Court's decision in Worcester v. Georgia, 31 Pet.) 515 nature (1832), of the jurisdictional disputes In Indians. illustrates government, Worcester, not the Georgia, had Court historically between held authority the that over to u.s. the (6 imbedded states the the and federal Cherokee 3 The Cherokee Indians rejoiced because the Court 4 had struck down the Georgia Indian Codes. Unfortunately, Indians. the Supreme Court had decision; no power to make Georgia obey its that was the job of the President of the United States and President Jackson, who had won fame as a:r. Indian fighter and hero in the War of 1812, had no intention of 5 Jackson rEsponded, upholding John Marshall's decision. 6 "Narshall has made his decision, no\v let him enforce it." The significance of Worcester v. Georaia with regard to jurisdiction is that it limited state intrusion into Indian ~0006t 2 affairs. Marshall's rule that state law can have no force in Indian country had several virtues, but perhaps the most important was its simplicity. When tribal and state juris- diction was viewed in purely territorial terms, it was only necessary to discover the location of a transaction or occurrence in order to determine whether the tribe or state had control over the matter. 7 Harsh all's view of Indian territory as areas in which state law could have no force was never popular among the states and though it was the pronounced law of the land, it was rarely enforced or respected. 8 Fifty years after the decision 1n Worcester was rendered, a McBratnev, major change U.S. 104 occurred 9 621 (1881). in United States v. Although McBratney in- volved criminal jurisdiction, its ramifications poured over into civil jurisdiction. In McBratney, a non-Indian was convicted in federal court of murder of another non-Indian . h'1n I n d'1an terr1' t ory. 10 w1t The Supreme Court held that the federal court could only exercise criminal jurisdiction over places within government. 11 the exclusive jurisdiction of the federal The Court reasoned that if Colorado had any jurisdiction over the crime, then the federal court necessarily had none. The Court ruled that the State of Colorado must have jurisdiction because Congress h2d admitted it to the Union "upon equal footing with without expressly excluding state the original States" jurisdiction over Indian 3 territory.l2 Worcester v. The McBratney opinion neither mentioned Georgia nor attempted to explain v.rhv in that case Georgia had been prevented from extending its governmental power to a non-Indian in Cherokee territory. 13 Fifteen years after the McBratney decision, the Supreme Court decided DrapP.r v. United States, 164 u.s. 240 (1896). The facts 1n Draper were essentially identical to the facts presented in McBratney with one significant variance: the enabling act providing for Montana's admission to the Union stated that the people of Montana forever disclaim all title to Indian lands and that "said Indian lands shall remain under the absolute jurisdiction and control of the Congress 14 of the United States . . . . " The Court conceded that the enabling act might foreclose state jurisdiction over crimes committed by or against Indians. However, despite the clear and unequivocal language of the enabling act, the Court held that the Indians act did not preclude for crimes (reservation The state, land conuni tted inc1u d e d) therefore, had state power to punish nonanyv.rhere . aga1nst within ot h er jurisdiction, the state non- I n d.1ans. and the 15 federal conviction was overturned for failure of jurisdiction. McBratney and particularly Draper have been reg2rded as feats of nounced judicial ingel!ui ty. 16 Even though the rule pro- in Worcester had not been followed by the states, the Supreme Court had never before sanctioned such intrusion by the states into Indic.n terri tory. Yet in the face of 4 Worcester and statutory language which appeared to preclude state jurisdiction, the Court willingly allowed state law to . I n d'1an t err1tory. . l? opera t e 1n After McBratney and Draper, tribal and state powers were no longer viewed in purely territorial terms; the door was opened interests example, for judicial whenever balancing questions of of state and jurisdiction arose. into identity the of the nature parties of must the be subject considered matter to whether a matter is under state or tribal contro1. Supreme Court clearly articulated (1959). In this case, a and determine 18 the state and tribal jurisdiction in Williams v. Lee, 217 For a determination of the location together with an examination The tribal non-Indian brought test for 358 U.S. suit in state court against an Incian couple for the purchase price of goods sold to the I:r:c ians on the Navajo Reservation in 19 . Ar1zona. The Supreme Court held that the state courts had . no jurisdiction over t h e act1on. emphasis on Worcester v. Lee. States law on this subject as 20 The Court 21 placed much The Court summarized United follo~. .rs: Over the years this Court has modified these principles in cases '\vhere essential tribal relations were not involved and ,,,There the rights of Indians '\¥ould not be jeopardized, but the basic policy of Worcester has remained. . . . Thus, suits by Indians 2gainst outsiders in state courts have been sanctioned . . . and state courts have been allowed to try non-Indians who committed crimes ~gainst each other on a reservation. . • . But if a crime was by or against an Indian, tribal jurisdiction or that expressly conferred on other courts by Congress has remained exclusive. . • . 5 Essentially, absent covernino Acts of Congress 1 the question has alviays bee~ whether the state action infringes on the right of reservation India~2 to make their own laws and be ruled by them. The Court also made it clear that Congress, by enacting Public Law 280, had provided the sole means for a state to acquire civil and criminal jurisdiction in Indian country. 23 It is also noteworthy that the Court's decision concludes that even concurrent state jurisdiction would unduly interfere with the powers of tribal courts. 24 In (1962) 1 that a Organized Village the vJilliams v. of Kake v. Lee rule was state could extend its Egan, U.S. 369 60 interpreted to mean jurisdiction to Indians as well as non-Indians in Indian country so long as there was 25 no direct interference with tribal self-government. This expansion of the Williams v. Lee test was largely restricted in McClanahan (1973). Arizona v. Arizona McClanahan to collect Corr~ission, Tax involved state an attempt income tax on by 411 U.S. 164 the State of . 1.ncome Indian's 26 The state argued that a tax on the income of an individual Indian did not interfere with earned on the reservation. tribal self-government and, therefoLe, was permissible the test of Williams v. Lee. by the avoided state's argument 27 that interfering \, ith tribal 7 ~nder The Court was not persuaded an individucl income self-government. tax Hov;ever 1 the Court concluded that the primary defect in the state's reasoning was their failure to recognize that the test of G Williams v. Lee wc..s never intended to apply to attempted exercises of state jurisdiction over Indians. 28 The Court pointed out that the only time it v7as appropriate to balance the state and tribal interests was when the state asserted power over non-Indians in Indian country. 29 it clear that when a McClanahan made state attempted to reach Indians 1n Indian country, the legality of the state's action is to be determined by reference to existing federal statutes and treaties, interpreted in light of a history of Indian tribal sovereignty and independence from state law. 30 Two generalizations discussed thus far. parties and does can be derived interests the cases First, where a case involves no Indian not affect tribal state courts do have jurisdiction. Indian from are involved, self-government, the Second, when Indians or state power is usually excluded unless federal statutes such as Public Law 280 or treaties confer it. Of course, these generalizations 2re subject to qualifications. Indians and Indian Country The terms are used "Indian," frequently "non-Indian" throughout terms appear se:f-explanatory, this and "Indian country" paper. Although the a brief discussion of their legal meaning is in order. The referencE to Indians in Williams v. Lee to include all Indians 31 appears 2_rrespecti ve of tribal membership. However, case law has cast some doubt as to the validity of 7 using the term "Indians" United States v. Wheeler, b roaa.,1 y. 32 so u.s. 435 313 For example, (1978), the Court repeatedly referred to a tribe's inherent criminal jurisdiction over its members. This reasonably implies that for tribal jurisdictional purposes, the party involved must not only be an Indian, but also must be a member of the tribe. 33 Reinforcing this view is the case of Washington v. Confederated Tribes of the Colville Indian Reservation, 134 (1980). 34 Indians not same fully as the Court non-Indians treated non-member purposes of a state 35 cigarette sales tax in Indian country. Since the courts have the In Colville, 447 U.S. resolved w-hether for the Wheeler and Col ville tribal membership requirement extends to all jurisdictional determinations in Indian country, the use of the term Indian in this paper refers to all Indians irrespective of tribal . memb ers h 1.p. 36 The term "Indian country" refers to the geographic area in which tribal and federal laws normally do not. 37 given its U.S.C.A. § present laws normally apply and state The concept of Indian country was defini~ion by Congress ln 1948. 1151 defines Indian country as follows: [T]he term "Indian country," as used in this chapter, means (a) all land within the limits of any Indian reservation under the Jurisdiction of the United States government, notwithstanding the issu2nce of any patent, and, including rights-ofway running through the reservation, (b) &11 dependent Indian communi ties ¥-~i thin the borders of the United States whether within the criginal or subsequently acquired terri tory thereof, and whether within or without the li~its of a state, 18 8 and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. While the above definition is located in the criminal code, the Supreme court has found that it "generally applies as well to questions of civil jurisdiction." 38 Subsection the territory (a) of 18 u.s.c.A. within an Indian § 1151 includes all of reservation. The mere opening up of a reservation for non-Indian settlement does not remove the newly settled lands from being classified as Indian country. 39 However, a congressional decision to abandon the Therefore, settlement, reservation status of those lands does. 40 when Congress has opened reservations to heavy there is often a difficult question of fact, i.e., whether the intent was to permit non-Indians to live and own land on the reservation or whether it was to extinguish a segment of the reservation and open it for settle41 ment as public, non-Indian land. In Seymour v. Superintendent, 368 U.S. 351 (1962), and Mattz v. Arnett, 412 U.S. 481 (1973), the Supreme Court held that the extensive allotment and settlement of reservation land did not destroy the reservatj_cn status of the land. Mattz, the Court st<:ted that 11 [a] In CongreFsional determina- tion to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history." 9 In contrast to the findings in Seymour and Mattz, Supreme Court in DeCoteau v. District County Court, 420 425 (1975), (1977), and Rosebud Sioux Tribe v. Kniep, found that Congress had terminated 430 most the u.s. u.s. 584 of the reservation land l.n question even though Congress had not expressly pronounced such an intention. overrule Seymour or Mattz; The Court did not it simply found different evi- dence of congressional intent in the statutes, history and surrounding circumstances. legislative The only thing one can reasonably conclude from reviewing these cases is that without a tion judicial determination of the status of reserva- land opened up whether or not the for settlement, land retains one Subsection (b) of 18 U.S.C.A. communities" determining whether to a be be sure its reservation status or has been extinguished as a reservation. Indian cannot 1151 defines "dependent § Indian settlement 43 The country. of Indians key to constitute a "dependent Indian community" hinges upon the manner in which they have branches been treated unwilling t_o imply that found, is there a the executive government. federal the of by ~rherever depen d ent. an . I n d 1an 44 and legislative Courts Indians have been settlement is commun1' t y. 45 \'~hat is important in determining whether a settlement of Indians 1s a "dependent has long .. 46 • • • Indian community" existed bet\veen the is the "relationship which Government Therefore, without a and the Indians judicial determination of 10 the status of a group of Indians living in a settled region, it is not safe to conclude that the settlement of Indians comprises a "dependent Indian community." Subsection (c) of 18 U.S.C.A. defines 1151 § 11 [a]ll Indian allotments, the Indian titles to which have not been extinguished, same 11 to be including rights-of-way Indian country. running Subsection (c) through is a the logical extension of the Supreme Court's decision 1n United States v. Pelican, 232 u.s. 442 (1914). 47 In Pelican, held that Indian trust allotments, the boundaries of an Indian the Court even though not within reservation, distinctively retain Indian character during the trust period because they are devoted . d 1mpose Indian that the occupancy under 1 eg1s . 1 a t '10n. 48 f e d era 1 by conclude to definition in It the is limitations reasonable subsection (c) is to more predictable due to its self-explanatory character than the definitions of Therefore, determine a Indian country in subsections judicial whether any determination allotment 1s still not 1n (a) and (b) . necessary trust to satisfies subsection (c) of 18 u.s.c.A. § 1151. Subject Matter Jurisdiction The topic of subject matter jurisdiction addresses when state or tribal courts may hear disputes concernin9 natters such as torts, domestic relations or ccntrr..cts. Subject matter jurisdiction in Incian law often turns on the exclusi ve . ' d'1ct1on . JUr1s of t r1'b a 1 cour t s. 49 A c 1 ear ex amp 1 e of 11 exclusive tribal subject matter jurisdiction was presented in the discussion of Williams v. Lee, earlier in this paper. 358 u.s. 217 (1959), A review of the facts and holding in that case clearly delineates the difference between the concept of subject matter jurisdiction and the concept of personal jurisdiction. In Williams v. Lee, a non-Indian entered into a con- tract for the sale of goods on the Navajo Reservation with Mr. and Mrs. Williams, a Navajo Indian couple. not made, The Payment was so Mr. Lee filed suit in an Arizona state court. Supreme Court held that jurisdiction was exclusively vested in the Navaho Tribe and that the Arizona state court . 50 . . . d. h a d no su b Ject matter JUrls 1ct1on. Mr. and Mrs. Williams had been served with process on the reservation. 51 However, even if the Williams had been served vlith process off the reservation, have lacked . . . 52 subject matter jurisd1ct1on over t h e transact1on. There- fore, the Arizona state court it was lack of subject matter would jurisdiction over the transaction, not the lack of personal jurisdiction over the defendants that served as the basis for the Supreme Court's 53 . . d eC1SlOn. The subject matter bar to state jurisdiction announced 1n \~illiams Court, Child 424 v.Tas u.s. ~elfare similarly announced in Fisher v. 382 (1976). Fisher involved a Act adoption proceeding. 54 District pre-Indian All parties to the proceeding were members of the Northern Cheyenne Tribe and ()()071 12 all parties resided within the The Court held that state court would plainly government • • • • interfere with upon The further Court jurisdiction in this case the "conferred boundaries. 55 reservation the powers of Northern noted tribal self- Cheyenne Tribe that Montana had not assumed civil jurisdiction over the Northern Cheyenne Indian Reservation pursuant to Public Law 280. 57 engaged that in a significant "[s]ince the contacts adoption The Court then analysis proceeding and is concluded appropriately characterized as litigation arising on the Indian reservation, the jurisdiction of the Tribal Court is exclusive." 58 This "arising on the reservation" language indicates that a state may possess jurisdiction off-reservation contacts. if there are substantial 59 The subject matter bar to state jurisdiction announced in Willi~rns and Fisher applies in other civil areas such divorce and personal injury. been receptive . . d. . 61 JUrls 1ct1on. of the State courts have not always exclusion of court upheld involving two state subject matter For example, in Bad Horse v. Bad Horse, 163 Mont. 445, 517 P.2d 893, cert. denied, the ~s state jurisdiction reservation Indians, 419 1n say1ng, u.s. a 847 (1974), divorce case "the courts this state are open to our Indian citizens. of As citizens of the State of Montana they are entitled to the protection of our and utilization of our courts." 62 The Nontana Supreme Court has expressly overruled Bad Horse based on a 13 tribal court advisory opinion that interprets the tribal constitution as vesting exclusive jurisdiction over domestic relations in the tribe. 63 of Much jurisdiction the states' appears to Indians are accorded disdain be over grounded "more rights" exclusive 1n the tribal belief that than other citizens of the United States longer and that such separate treatment is no 64 warranted. Based upon this sentiment from the states, the 95th Congress made a drastic proposal that would have directed the President to, . I n d 1ans t o inter alia, . . d. . 65 JUrls 1ct1on. state fully subject Fortunately for the survival of tribal sovereignty, the measure did not pass. 66 Exclusive tribal jurisdiction with regard to contracts arising in Indian country and involving Indian parties was reaffirmed in R.J. Williams Company v. Fort Belknap Housing Authority, 719 F.2d 979 U.S. 1016 (1985). ed with the single-family (9th Cir. 1983), cert. denied, 472 In this case, Williams Brothers contract- houses. A ut h or1ty . 67 . Hous1ng Indian 68 As a of part to the build fifty contract, the Williams Brothers corrected some deficiencies in the houses but refused to repair the others contending that all remain1ng defects were the result of tenant abuse. failed to resolve Housing Authority, the a conflict and on tribal court judge attachment leading to the seizure of 69 Negotiations application of the issued a \\ ri t approximatel~' 7 of $50,000 worth of equipment, supplies and materials belonging to the 14 R.J. 70 Williams Company. The seized items were located on tribal property; therefore, the attachment did not transcend the boundaries of the Fort Belknap . Indian commun1.ty. 71 Richard Williams and R.J. Williams Company filed an action in federal property district court and damages seeking the arising out of return the of their alleged wrongful attachment. 72 The federal district court's jurisdiction was premised on diversity jurisdiction pursuant to Even the though Ninth Circuit 28 u.s.c. concluded 1332. 73 § that complete diversity existed, the court noted that federal courts could be divested of diversity jurisdiction "whenever the dispute involved the exerc1.se self-government." sitting in 74 of the tribe's responsibility for The court reasoned that a federal court diversity operates merely as an adjunct to a state action and if the state court would be precluded from asserting jurisdiction over a matter b2sed upon the princip 1e s pronounced then a in \~ i 11 i ams v. Lee , 3 58 U•S • 2 17 fortiori the federal court should be precluded from acting as an adjunct for the state court in such a . 75 t 1.on. ( 1 9 59 ) , situa- The Ninth Circuit then considered the significant contacts outside the reservation " . • . the contract involved 76 and concluded that since housing to be built on the reservation, to be occupied by reservation members and paid for by an agency representing the tribe," that the tribe had exclusive jurisdiction over the rnatter. ·00074 77 This case clearly 15 upholds the doctrine of Vlilliams v. Lee a.nd illustrates that a federal court cannot exercise diversity jurisdiction if the state court could not have done so . • The cases discussed thus far reveal that tribal courts are generally the disputes Indians tribe exclusive affecting the which fails arise to forum for the adjudication of interests of both Indians and non- in exercise Indian its country. exclusive However, when jurisdiction, a the question arises as to whether it is appropriate for a state court to exercise jurisdiction. Smith, 69 N.C. App. 1, 316 For example, in Wildcatt v. S.E.2d 870 (1984), a default judgment ,,.ras entered by a state court early in 1980 against a member of the Eastern Band of Cherokees. 78 The tribe did not have a tribal court at the time the default judgment was entered, appeals but created one later that year. found that the default 79 The court of judgment ,,ras valid because there was no interference v..ri th tribal self-government s1.nce the tribe "had not chosen to exercise its rights of self80 government in the area of dispute resolution. " Significantly, the court did hold that the state court was divested of jurisdiction to enforce tribal court was established. the def2_ul t judgment once the 81 Along these same lines is the question of whether state court jurisdiction is sanctioned ~hen a tribal code does not provide a remedy for a particular legal wrong. DeHarrias, 502 r.2d 23 (8th Cir. 1974), cert. In Poitra v. denied, 421 16 U.S. 934 death (1975), case the court of appeals permitted against an Indian defendant to a_ be wrongful brought 1n federal court on diversity grounds because the tribal code did not provide a decision operates remedy as an for the understandable relief to an injured plaintiff; concept of tribal Indian plaintiff. attempt however, self-government. to This extend it overlooks the As aptly stated by an Arizona court in Enriquez v. Superior Court, 115 Ariz. 565 P.2d 522 (Ct. App. 1977), a tribe's "right to 342, self- government includes the right to decide what conduct on the reservation will subject the Indi2ns living there to civil liability 1n . . . tribal court." may very well be interfering 82 Therefore, state courts with the right of tribal self-government by providing remedies for matters that are not recognized as cognizable injuries by tribal courts. Right of Indian to Bring Suit Against Non-Indian in State Court When Claim Arises in Indian Country Based on Williams v. Lee, one might infer that the state is precluded from exercising jurisdiction over a claim by an Indian aga~nst plaintiff himself of the non-Indi2~ when the claim arises 1n Such an inference is incorrect because an Indian country. Indian a has an equal state courts protection . 1n sue h a right . . Sl tuat1on. to avail 83 This issue reached the Supreme Court 1n Three Affiliated Tribes of the Fort Berthold Reser,·ction v. l\Told Engineering, P .c., 467 u.s. 138 (1984). Three Affili~ted Tribes (hereinafter 17 petitioner) , 84 Dakota, a federally recognized Indian tribe in North sued respondent, Wold Engineering (non-Indian), in state court for negligence and breach of contract claiming that respondent's contracted services (water supply system) did not perform to petitioner's satisfaction. 85 At the time the suit was filed, the tribal court did not have jurisdiction over any claims by an Indian against unless the parties stipulated to it. 86 the state court did not have a non-Indian Respondent claimed jurisdiction over the matter and the North Dakota Supreme Court agreed. The supreme matter scope that United court's of of the an Supreme decision petitioner's "tribal allows States state and Court concluded complaint trial Indian to enter is that clearly court's self-government reversed the the fell subject within jurisdiction, not state the reasoning impeded when a State its courts on equal terms \·.ri th other persons to seek relief against a non-Indian concerning a claim arising Indian country." 87 The Court further stated that "[t]he exercise of state jurisdiction 1s partieularly compatible with tribal autonomy when, suit is brought by the tribe as here, the itself and the tribal court lacked jurisdiction over the claim at the time the suit was . . d . .,88 1nst1tute The Court vacated the North Dakota Supreme Court's judgment and remanded the case for further proceedings because the Supreme Court believed the state court's 18 interpretation of state law had been by influenced an incorrect interpretation of federal law. 89 On remand, the North Dakota Supreme Court held that the tribe could defendant only bring if the the tribe action against consented pursuant to Public Lav..T 280. 90 to the state non-Indian jurisdiction The state court appears to have adopted the sentiment expressed in Justice Renquist' s d'1ssen t '1ng .. op1.n1.on 91 w11en t h ey st.ated, "the Indian people will not receive justice on par with other citizens of this state until served they realize in the that state courts their 1986, are best pre- and they vote to accept state jurisdiction in all civil cases. In rights • • • the Supreme Court reversed the North Dakota Supreme Court and held that Public Law 280 93 preempted the state's rioht to disclaim jurisdiction over suits by Indians against non-Indians 1n state court, reason1ng that the tribal consent requirement did not apply since North Dakota had assumed Public Law 280 jurisdiction pr1or to the 196 8 amendment requiring tribal consent. of the North Dakota Supreme 94 Court's The Court's reversal decision that an Indian court unless Public lar state. 95 La~ However, cannot sue a remand consequent!~· placed extreme emphasis on Public LaK 280 and implies on non-Indian ln state 2£0 is in force within the particu- the 1 anguage Three Affiliated Tribes decision i~ ln the Court' s not nearly a~ 1984 restric- tive and appears to support state court jurisdiction when an 19 Indian sues a non-Indian over a matter arising Hithin Indian country irrespective of Public Law 28o. 96 If an Indian is allowed to sue a non-Indian in state court and the basis of the suit arises in Indian country, it is clear that the non-Indian cannot bring suit against the Indian in state court if Public Law 280 is not in force. result of this division of civil A jurisdiction is that the court in which a case is heard will often be determined by who sues first. have an For example, if an Indian and a non-Indian automobile non-Indian wishes tribal court. 97 collision to sue, 1n his Indian or her country sole and remedy the is 1n On the other hand, if the Indian wishes to sue, he or she may sue in state court and under many tribal codes -v1ill be precluded from suing in tribal court. the Indian whether does sue in that court has Indian's possible state court, the question 98 If arises jurisdiction to entertc.in the non- counterclaims against the Indian. As indicated by the Supreme Court's decision in Three Affili99 ated Tribes, this issue has not been settled. It has been stated court . to c 1 a1ms. si ve that 100 the have sensible jurisdiction to is hear to allov.r the compulsory state counter- In contrast to compulsory counterclaims, permis- counterclaims therefore, approach it would are be unrelated to improper for the the . . . 101 extend jurisd1ct1on to h ear sue h c 1 a1ms. rr.ain claim state ar..d, court to 20 Divorce Domicile and status of the plaintiff are regarded as the determinative factors for state court jurisdiction in divorce cases. 102 It is clear that state courts do have jurisdiction to grant divorces between Indians domiciled outside of Indian country. 103 who However, a are state court that has not accepted jurisdiction in accordance with Public Law 280 does not have jurisdiction when both parties to the divorce are Indians domiciled in Indian country. 104 There is no clear cut rule stating which court has jurisdiction when the reservation plaintiff and he or is she a non-Indian is seeking Indian living on the reservation. a living off divorce from the an However, it appears that ° ° t h e W1 11 1ams v. Lee 1 0 5 ana 1 ys1s s h ou ld contro 1 an d 1. f s t a t e 0 jurisdiction interferes with tribal self-government, 106 divorce action should be removed to tribal court. the Probate Probate of Indian trust properties is the sole responsibili ty of the federal government and is administered by 107 the Department of Interior pursuant to 25 u.s.c. § 373. Inheri tunce of lands held 1n trust often presents 0 Indian perp 1 ex1ng resu l ts. lOS For instance, often that o becomes "minimal." 109 so large Since trust land the are the return problems probate of not federal government's exclusive the number of heirs to each associated heir with jurisdictional due jurisdiction, to 1s the the the remaining 21 discussion of probate jurisdiction will focus on non-trust property. Tribal code provisions regarding probate generally provide: When any member of the Tribe dies leaving property other than an allotment or other trust property subject to the jurisdiction of the United States, any member claiming to be an heir of the decedent may bring a suit in the [tribal court] to have the court determine the heirs of the decedent and to divide a~~8g the heirs such property of the decedent. Tribal court decedent's generally domicile jurisdiction in probate is determined by the t r1'b a 1 base at decedent's the memb ers h'lp; probate time property. 111 \'There as jurisdiction of 112 death If a or state upon upon decedent the the courts decedent's location tribal of member was domiciled off the reservation, it is likely that state and tribal jurisdiction will clash. An overlap in state and tribal jurisdiction will also result when a decedent Indian domiciled on the reservation owns property off the reservaA tion. series of intervievlS with the Chief Judges of various tribes reveal that tribal courts "generally assume probate was jurisdiction only when the decedent actually domiciled on trust] property there." the reservation or o\\rned tribe has no [non- 113 The considerations of Williams v. Lee a tribal member significant interest to 114 be indicate that protected hy asserting probate jurisdiction over the estate of a decedent Indian who was domiciled off the reservation and did not own 22 any non-trust property located on the reservation. 115 In contrast, the vlilliarns v. Lee considerations "dictate that the estate of a reservation-domiciled decedent be probated in tribal court and, except for necessary ancillary state court administration of off-reservation property, that such tribal court . • . jurisdiction be exclusive." 116 Personal Jurisdiction Personal jurisdiction refers to the court's power over the parties involved subject matter in a particular jurisdiction discussed lawsuit. above, In state the courts often lack jurisdiction because all or most of the contacts were within reservation boundaries whereas personal jurisdiction refers to the court's power over the particular over claims . . part1es involved 1n t h e 1 awsu1' t . 117 State courts have jurisdiction against Indian defend2nts when the claims arise outside of Indian country. 118 Authority is split, however, on whether a state may initiate suit by serving process upon the Indian after he or she has returned to the reservation. ities v. Anderson, 84 N.M. 629, In State Secur- 506 P.2d 786, 789 (1973), the New Mexico Supreme Court held that the state court could acquire jurisdiction over an Indian residing on a reserva- tion by issuing and serving process upon the Indian while he was on the reservation since the dispute involved a contractual obligation arising off the reservation. The court 23 reasoned that it would be 1mproper to allow the defendant Indian to ". . • interpose his special status as an Indian as a shield to protect him from obligations . o ff th e reserva 1on. 119 " incurred 0 t In contrast, the Supreme Court of Arizona in Fransico v. State, 113 Ariz. 427, 556 P.2d 1 (1976), held that state service of process could not be served upon an Indian while on the reservation and, therefore, concluded that the state court lacked personal jurisdiction over Mr. Francisco. The state had instituted a paternity action in the name of a young I n d 1an 1 aay 1 1v1ng o f f th e reservat1on. 1 2 0 ::1 0 0 0 0 The court noted that although the service of process was invalid, the state court did have subject matter 0 paternity " act1on. . . that effected 121 service through The of the court process Papago jurisdiction over the could Indian explained further have validly authorities ~ho been are vested with the power to serve process pursuant to tribal 1 aw. .. 122 Authority is similarly divided with regard to the question of whether a valid state judgment against an Indian arising from an off-reservation executed in Indian country. claim can be directly In Little Horn State Bank v. Stops, 170 Mont. 510, 555 P.2d 211 (1976), cert. denied, 431 u.s. 924 (1977), the court held that a \vrit of execution issued from state court which garnished the wages of rEspondent's reservation earned income did not interfere with 24 tribal self-government. The court reasoned that any court having jurisdiction to render a judgment also has the power to enforce that judgment through any order or writ necessary to carry its judgment into effect. 123 little, if government. F.2d 358 any, meaningful In contrast, (lOth Cir. This decision shows deference to tribal self- the court in Joe v. Marcum, 621 1980), held that the enforcement of a state court judgment by garnishing wages from a non-Indian employer on the reservation was invalid. that "[g) arnishment is a The court noted statutory remedy which does not exist at common law," and reasoned therefrom that since some states permit the garnishment of wages and some do not, then the Navajo Tribe, as a " . . . sovereign entity . . h ment, not prov1de for garn1s 1' f 1. t • • • so c h ooses. "124 need Thus, the court concluded that upholding the state garnishment of an Indian's wages would earned by his labor on the reservation impinge upon tribal sovereignty becc:~use policy does not permit garnishment of wages." the "Navajo 125 It is difficult to reconcile the divergent approaches taken by the explanation, courts although variance between the in not t\-.'0 Little a Horn and Joe. justification, cases is the A partial for the stark fact that the Crovl Indian Tribal judicial system in Little Horn did not provide . 126 any means for honoring state court JUdgments, '"-'hereas the Navaho advanced Indian and Tribal provides judicial alternate system methods 1n of Joe is post highly judgment 25 enforcement. 127 Thus, cooperation as well it appears that state as procedural vehicles and are tribal needed to prevent the result in Big Horn. 128 Procedural remedies that will protect tribal sovereignty and at the same time allou state courts to adjudicate and execute off-reservation claims are available. For example, state long-arm statutes allow the state to obtain limited jurisdiction over the reservation Indian. 129 statute does rna tt ers th a t court not confer state court . b ase d . 13 0 are reserva t 1.on- judgments obtained in long-arm The long-arm jurisdiction As a result, proceedings over state can be enforced like an interstate action--"by suit on the judgment in tribal court" or by any other procedure permitted by the 131 . ' t rat1.on. . Of course, sue h a tr1.. b a 1 court, 1..e., reg1.s procedural device is of little utility if the states and tribes are unwilling to cooperate. In Red Fox and Red Fox, 23 Or. App. 393, 542 P.2d 918 (1975), a woman who was a member of the Warm Springs Tribe of Oregon obtained a divorce decree from the Tribal Court. ~·~arm Springs Her husband who was enrolled at the Fort Peck Reservation in Montana Oregon state court. 132 subsequentl~7 filed for dissolution in The trial court dismissed the action finding that it was barred by the tribal court decree and the state indeed court personally of appeals subject to held the that both tribal parties v1ere court decree. 133 The court reasoned that even though "full faith and credit" 26 principles do not apply to tribal court judgments, "the quasi-sovereign nature of the tribe does suggest that judgments rendered by tribal courts are entitled to the same deference shown decisions of foreisn nations as a matter of . ..134 com1ty. Thus, there is a degree of cooperation between the states and Indian tribes. In fact, recent reported decisions have been nearly unanimous in granting recognition 135 to tribal court decrees. However, many unreported lower state cases refuse to recognize tribal judgments and 136 laws. Tribal courts have also refused to recognize state . d gments on occas1on. . 137 court JU Reciprocity between state and tribal courts is necessary to ensure a meaningful coexistence of tribal and state court jurisdiction. deference to a However, the basis for a State Court's tribal court judgment is not clear. The Court in Red Fox noted that the basis for giving deference to the fa:i.. th tribal court decree was not grounded 1n the and credit 11 clause, comity since art. IV, only applies as § but rather upon 11 full principles of 1 of the United States Constitution between states. 138 Nevertheless, Supreme Court has stated in dictum that tribal co~rt the judg- ments "have been regarded in some circumstances as entitled 13 9 · ' to full faith and cred1t 1n ot h er cour t s. " ing that "full faith and credit" Al so 1n . t.1ma t - principles may apply to tribal judgments is the implementing language of 28 1738 which Congress passed providing that: u.s.c. S 27 Acts, records, and judicial proceedings shall have t~e .same ful~ faith and credit in every court w1th1n the Un1ted States and its Territories and Possessions as they have by usage in the courts of such State, Territory, or Possession from which they are taken. The question of whether tribes are "territories" within the meaning of 28 U.S.C. § 1738 has not been answered with any degree of uniformity. The New Mexico Supreme Court has held that the Navajo Tribe is a "territory" within the meaning of 28 U.S.C. 1738, § and that tribal laws must be given full faith and credit by statute. tive commentator, gress did not "territories" 1978 case 142 Professor intend in § to 17 3 8. 140 Nonetheless, an authorita- Ragsdale, include 141 concludes tribes within that Con- the term The Supreme Court noted in a that tribes are not territories, but the Court was not deciding whether tribes are "territories" within the meaning of § 1738. Therefore, until the Supreme Court squarely decides the issue or Congress amends the statute to clarify its intent, rtates will continue to randomlv decicc ~ whether or not they will accord tribal judgments full faith and credit. Indian Child Welfare Act of 1978 The Indian Child l'Jel fare Act of referred to as the Act or ICHA) 1 3 19 7 s t1 (hereinafter was enacted by Congress in an attempt to promote the stability of Indian families and tribes. 144 The Act imposes strict procedural limitations on state and private welfare agency activities in response to 28 the history of unwarranted removal of Indian children from 145 their homes. dren from minimum To prevent the separation of Indian chil- family and tribal heritage, federal standards the Act establishes applicable to child custody proceedings. The Act provides for exclusive tribal jurisdiction over reservation previously children, lost Public Law 280. petition the to except the 146 states However, government Th e . . d.1ct1on. . 147 JUr1s where to Act jurisdiction under federal has law, been i.e., the tribes are authorized to reassume such previously further provides lost state that jurisdiction over child custody proceedings may be transferred to tribal request. 148 courts at the tribe's or the parents' The tribe and the parents are also accorded the right to notice and the right to intervene in state proceed. 1ngs involving higher 149 . Ind1an c h 1'ld ren. standards of proof be Th e Ac t applied . . requ1ref" Indian 1n th c. t custody proceedings and mandates that placement of Indian children by state to special preferences for 150 Indian families and cornrnunities. The Act requires th0t consent agencies by . f orme d . 151 1n Indian be subject parents Furthermore, to adoption or placement such consent can be revoked . d s o f t.1me. 152 the Indian parents for extende d per1o also secures records. 153 both tribes' and parents' access be b"~ The Act to state 29 The Act's minimum care placements, federal safeguards preadoptive placements, termination of parental rights. 154 apply to foster adoptions and the Expressly excluded from the Act are custody proceedings between parents in connec. t 1on w1. th d.1vorce. 155 minimum federal Even though Congress established the safeguards to better protect the rapidly deteriorating Indian family unit and tribal culture, 156 the ICWA provisions ICl~A fact, the leave much room for interpretation. In is probably involved in more litigation than any other Indian statute. 157 The Act has been criticized because it entrusts state courts and procedural agencies child v_relfare agencies with most of the major safeguards. determine 158 who For to example, notify and state hO\'l and long private an Indian child can be kept in emergency placement without notice or 159 . 11ear1ng. Furthermore, state courts essentially have unlimited discretion to deny a traLsfer of jurisdiction to tribal courts, determine who is eligible to intervene, to determine when placement preferences must be followed. In Hatter of Adoption of Baby Boy L., 161 and 160 the Kansas Supreme Court, in revie\';ing the state district court pro- ceeding, little, deference gave if any, requirements of the ICWA. of a baby boy who mother enrolled and a as o. ~as the express The 2ction involved the adoption the illegitimate son of a non-Indian five-eights member to of Kiowa t he . K 1owa Indian father T r1'b e. 162 who It was ~as not 30 disputed that the appellant was the father of the child. 163 The Kiowa Tribe, the Indian father as well as the baby's paternal grandparents appealed from the decree of adoption entered by concluded, the district court. 164 However, the court inter alia, that the ICWA did not apply because the baby boy had never been in the care or custody of the Indian father nor had the child ever been a part of any . I n d 1an f am1'1 y re 1 a t '1ons h'1p. 166 that denying the harmless error Kio\·la Tribe's s1nce the The court petition to non-Indian also cone 1 uded intervene was mother would have revoked her consent to adoption if the non-Indian couple she selected had been denied adoption. 167 The court's conclusion was wholly misplaced. The Act defines "Indian child" as follows: . . • any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership 1n an Indian tribe and is the 1 ~~ological child of a member of an Indian tribe. The baby boy clearly satisfied this definition. Further- more, the Act provides: In any State court proceeding for the foster care placement of, or termination of parental rights to an Indian child, the Indian custodian of the child and the Indic.n child's tribe shall have a :ighi ~o intervene at any point in the proceed6 1ng. The Indian father's parental rights were clearly terminared. Nevertheless, the state court denied the Kiowa tribe their statutory right to intervene and held that any error in such denial was harmless. 31 This case disregard though for the is a the court clear express may instance provisions have been of a of the justified state court's ICWA. in Even finding the Indian father to be unfit as a father due to his incarceration at the Kansas State Reformatory, 170 the court over- looked the fact that the baby boy's paternal grandparents as well as other members of the tribe desired to adopt the baby b oy. 171 With ease, the court ignored § 1915 of the ICWA which provides: (a) The In any adoptive placement of an Indian child under State law, a preference shall be given in the absence of good cause to the contrary, to a placement \\rith (1) a member of the child's extended family; (2) other members of the. I~diap 7 zhild's tribe or (3) other Indian fam1l1es. Tenth Circuit reviewed the Kansas Supreme Court's decision and held that the state courts• conclusion that the ICKA did not apply was binding since it was not "so funda. d . . ..173 mentally flawed as to b e d en1e recogn1t1on. federal court gave interpretation of the Fortunately, ments of the Act . great deference feder~l to the Thus, the state court's statute. not all state courts 1gnore the require174 For instance, in Matter of Morgan, the .t-1ichigan Court of Appeals reversed a decision becc..use the trial court applied rather than the the "clear and "beyond a reasonable doubt" terminating rights of Indian parents. that the ICl\'A convincing" sets minimum federal 175 standard standard \\'hen The court reasoned standards and that § 32 1912 (f) requires proof "beyond a reasonable doubt" that continued custody by the Indian parent is "likely to result in serious emotional damage to the child. u 1 7 6 The court further noted that the trial court failed to use the testimony of qualified expert witnesses and failed to show that active efforts had been made to prevent the breakup of the family. 177 178 A comparison of Matter of Adoption of Baby Boy L. 179 . d' an d Ma tt er o f Morgan 1n 1cates t h at t h e po 1'1cy b e h'1nd t h e ICWA can only be effectuated by state courts that uphold and are cornrni tted to preserving the Indian family unit as well as tr1'b a 1 cu 1 ture. 180 Although the ICWA does have inherent flaws, i.e., allowing state courts broad discretion, it does provide a workable frarnev. ork to better protect the Indian 7 family and tribal culture. Public Law 280 A thorough discussion of civil law is incomplete v.'i thout touching jurisdiction in Indian upon Public Law 280. This statute makes it clear that Congress has the power to change the division of jurisdiction tribal and state governments. among the federal, 181 Public Law 280 gave six states extensive criminal civil jurisdiction over Indian and country, a~d initially permitted all other states to acquire jurisdiction at their uni latera 1 · opt1on. 18 2 In 19 6 8 , th e 1 aw was . amen d e d as a the consent part of the Indian Civil Rights Act to reou1re ... 33 of the Indian people before the states could assume further jurisdiction. 183 1 . prospec t 1.ve y. However, 184 the Furthermore, amendment only applies Public Law 280 was amended as a part of the Indian Civil Rights Act of 1968 to allow the states, but . t 'l.On. 185 d l.C not Thus, the Indians, states that had to retrocede assumed juris- jurisdiction can now return all or any measure of jurisdiction to the federal government by sending a resolution to the Secretary of . 186 I n t er1.or. Of course, t h e Secretary does not have to . 187 accep t th e retrocess1.on. While Public Law 280 conferred both criminal and civil jurisdiction on the mandatory states, the criminal provision was clearly the most important to Congress. 188 The grant of civil jurisdiction was added to Public Law 280 as an after thought and there is, . . . 189 h lstory concern1.ng 1t. consequently, little legislative The civil grant provides: Each of the states • . listed . . shall have jurisdiction over civil causes of action between Indians or to v:hich Indians are parties which arise in the areas of Indian country listed . . . 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 property shall h2ve the same force and effect within such Indian couiJ_tgzy' as they have elsev1here within the State . . . . Therefore, Public Law 280 expressly conferred upon the state that which Williams v. Lee adjudicate civil actions 191 had denied, i.e., the power to &gainst Indian country. (j()O!l~J Indians that arose 1.n 34 A state's adjudicatory power under the statute is not absolute. nothing For example, in the 28 U.S.C. § civil grant confers 1360(b) provides that jurisdiction upon the states "to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of [trust] property or any interest therein. n 192 The same section excludes the state from encumbering trust property or interfering with . h ts. 193 t rea t y r1g Since the civil causes of action," grant is one of power over "civil this language indicates that the state simply acquired adjudicatory jurisdiction and not the entire power to legislate and regulate Indian country. 194 However, the statutory grant also provides that the "civil laws of [the] State • • shall • have the same force and within such Indian country as they have elsewhere State." 195 This latter language infers that a effect ~1ithin the state has been conferred full legislative jurisdiction. The true meaning of the statute was vigorously debated until the Supreme Court resolved the matter adversely to the states in Bryan v. Itasca County, 426 U.S. 373 (1976). Bryan involved the attcnpt of a Minnesota county to assess a state and local property tax against the personal property owned by an Indian. 196 The personal property was located in Indian country and the state had been oranted Public Law 280 197 The personal jurisdiction over such Indian country. property involved ~as not trust (j()fl94 property and the state 35 argued that such non-trust property became subject to the general laws. l98 "civil la¥7s" of the state, · 1ncluding · 1ts tax Th e S upreme Court examined the legislative history and concluded that the primary purpose of the Public Law 280 civil provisions is to provide a state forum for resolution 199 . o f d 1sputes. The effect of the Court's decision in Bryan is to confine the civil grant of Public Law 280 to adjudicatory jurisdiction and, consequently, powers retain vitality. trict Court, 400 U.S. the Furthermore, 423 (1971), tribe's law-making in Kennerly v. Dis- the Supreme Court held that Public Law 280 provides the exclusive method by which states may acquire jurisdiction over Indian country. Therefore, less formal acquisitions over Indian country are 200 no longer acceptable. Conclusion The most complex problems in the field of Indian lav.r arise in jurisdictional disputes among the federal government, the tribes and the states. it is each e~sential of the To resolve these problems, to know the basic limits of jurisdiction of contending The powers. basic maxim 1s that Congress has plenary power over Indi2n country and, therefore, an the states cannot intrude into tribal affairs express History accords grant from indicates that Congress carte Congress, the blanche (J()O~fj 1.e., doctrine Public of authority to ~ithout La~ 280. plenary power limit tribal 36 jurisdiction as it sees fit. Therefore, the jurisdictional principles discussed in this paper could pos£ibly be erased by one unilateral congres~ional act. Hopefully, the model for federal Indian policy will move in the direction of encouraging principles of tribal autonomy and self-government. Without tribal jurisdiction, the prospects autonomy and self-government becomes illusory. (j00~6 of tribal 37 Endnotes 1. D. Getches, M. Rosenfelt and C. Wilkinson, Federal Indian La\·J, 347 (1979) (hereinafter referred to as D. Getches, Federal Indian Law (1979)). 2. At the heart of Indian law cases is the question of tribal sovereignty and a concomitant attribute of sovereignty is jurisdictional po\',rer. Cf. Canby, Civil Jurisdiction and the Indian Reservation, 1973 Utah L. Rev. 206 (1973) (stating that the doctrines of tribal sovereignty and Indian wardship create the unique jurisdiction of the Indian tribe) • u.s. 3. Worcester v. Georgia, 31 (6 Pet.) 515 (1832). 4. Georgia's Indian Codes seized large parts of the Cherokee homeland in Georgia, made all Cherokee laws null and void, prohibited any gathering of the Cherokee people and ~ade it a crime for any Cherokee to speak against moving across the Mississippi River. A. Kelly & l\'. Harbison, The American Constitution; Its Origins and Developrrent, 285-287 (5th ed. 1976). 5. Id. at 2 8 7. 6. Id. 7. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Of course, Indian control over matters that occur within Indian country is subject to the federal government's plenary power over Indian affairs. R. Coulter, The De~ial See of Legal Remedies to Indian ()f_)0~7 38 Nations Under U.S. Law, in Rethinking Indian Law, 103, 105 (1982). 8. R. Coulter, A History of Indian Jurisdiction, in Rethinking Indian Law, 5, 8 (1982). 9. Canby, Civil Jurisdiction and the Indian Reservation, 1973 Utah L. Rev. 206, 208 (1973) (hereinafter cited as Canby, 1973 Utah L. Rev. 206). 10. Id. 11. 104 12. Id. 13. Supra note 9. 14. 104 U.S. 621, 627 u.s. at 624. (citing Act of Feb. 22, 1889, ch. 180 § 4, 25 Stat. 676). 15. Id. at 628. 16. Canby, 1973 Utah L. Rev. at 209. 17. Id. 18. Id. at 209-10. 19. 358 u.s. 217 20. 358 u.s. at 219. 21. Justice Black delivered the majority opinion. (1959). 350 u.S. at 21S-:iO. 23. :d. at 223. 24. "Although there may have been substantial juEtification for believing that tribal courts would suffer more damage than other courts by sh2ring concurrent jurisdiction with the state courts, the Supreme Court (}()098 39 v.ras unwilling to supply such justification in 1958." Canby, 1973 Utah L. Rev. at 212-13. 25. 369 U.S. at 75. 26. 411 27. Id. 28. Id. at 179. 29. Id. at 179-80. 30. Canby, 1973 Utah L. Rev. at 214 and n.63. 31. 358 32. See D. Getches and C. Wilkinson, Federal Indian Law, u.s. u.s. 164. 217 (1959). 295, n.2 (2d ed. 1986). 33. Cf. id. 34. Supra note 32. 35. 447 36. Supra note 32. 37. D. Getches, D. Rosenfelt and C. Wilkinson, Federal u.s. at 160-61. Indian Law, 348 (1979). 38. DeCoteau v. District County Court, 420 U.S. 425, 427 n.2 (1975). 39. Pipestein, The Journey From Ex Parte Crow Dog to Little Chief: A Survey of Tribal Civil and Criminal Jurisdiction ir: Western Oklahoma, 6 P.m. Indian L. Rev. 1, 6-7 (1978) (hereinafter referred t_o as Pipestein, 6 Am. Indian L. Rev. 1). 40. Id. at 42. 41. Id. at 41-43. 00099 40 42. 412 U.S. at 505: for a thorough discussion of Mattz and Seymour ~' Pipestein, 6 Am. Indian L. Rev. at 38-43. 43. Cf. Pipestein, 6 Am. Indian L. Rev. at 46 (any change in the contemporary notions regarding the reservation status of Indian tribes in Western Oklahoma will likely require litigation). 44. See United States v. Sandoval, 231 U.S. 28 (1913). 45. E.g. United States v. Martine, 442 F.2d 1022 (lOth Cir. 1971). 46. United States v. McGowen, 302 U.S. 535, 538 (1938). 47. Beardslee v. United States, 387 F.2d 280, 287 (8th Cir. 1967). ~8. Accord United States v. Ramsey, 271 U.S. 467 (1926), and DeCote2u v. District County Court, 420 U.S. 425 (1975) (uniformly holding that Indian trust allotments are included within the definition of Indian country). 49. D. Getches & C. Wilkinson, Federal Indian Law, 416 (2d ed. 19 8 6) . u.s. 50. 358 at 219. 51. Williams v. Lee, 83 Ariz. 241, 319 P.2d 998, 1000 (1958). 52. Canby, Civil Jurisdiction and the Indian Reservation, 19 7 3 Utah L. Rev. 2 0 6, 2 21 ( 19 7 3) . 53. Supra note 49. (j()100 41 54. The Indian Chil~ Welfare Act of 1978 was enacted two years after the decision in Fisher was rendered. 55. 424 U.S. at 384, n.6. 56. Id. at 387. 57. Id. at 388. 58. Id. at 389. 59. The Court expressly recognized that had the plaintiffs in Fisher been able to establish that any substantial part of the conduct supporting the adoption petition took place off the reservation, the plaintiffs may have been able to support the state court's jurisdiction. 60. 424 U.S. at 389. D. Getches & C. Wilkinson, Federal Indian law, 420 n.l (2d ed. 1986). 61. Id. at 421, n.2. 62. 517 P.2d 898 (1974). 63. In re Limpy, 195 Mont. 314, 636 P.2d 266, 269 (1981). 64. See e.g., Brough v. Appawora, 553 P.2d 934 (Utah 1976), vacated and remanded, 431 U.S. 901 (1977) (stating that the Ute Indians, by receiving a judgment totaling $31,938,473.43 against the United States, hac lost all rights which they or their ancestors had as members of the Ute nation, and therefore, were not immune from state tort law) . 65. Clinton, Isolated in Their Own Country: A Defense of Feder2l Protection of Indian Autonomv and Self- Government, 33 Stan. L. Rev. 979, 981 n.7 (1981), citing H.R. 13329, 95th Cong., 2d Sess. (1978) (intro- duced at 124 Cong. Rec. H6189 (daily ed. June 28, 1978)). 66. It is quite startling to think that Congress could have totally divested the tribes of all tribal jurisdiction; see generally, Martone, American Indian Tribal Self-Government in the Federal System: Inher- ent Right or Congressional License?, 51 Notre Dame L. Rev. 600 (1976); see also, United States v. McGowan, 302 u.s. 535 (1938) (jurisdiction of the federal government over all Indian affairs is plenary) . 67. The Housing Authority was created by tribal law of the Fort Belknap Indian Community. 719 F.2d 979 (9th Cir. 1983) • 68. 719 F.2d at 980. 69. Id. 70. Id. 71. Id. 7 2. Id. at 9 81. 73. The initial plaintiffs to the suit were residents of Washington and the defendant Housing Authority, although a creation of tribal law, ~as an incorporated entity and as such was a citizen of Montana for diversity purposes. existed. Therefore, complete diversity 719 F.2d at 982, n.2. {jf}lll2 43 74. 719 F.2d at 982. 75. Id. at 983. 76. 719 F.2d at 984. . The court noted that "[i]n deterrnin- l.ng the locus of a contract dispute that courts generally look to (1) the place of the contracting, (2) the place of negotiation of the contract, place of performance, (3) the (4) the location of the subject matter of the contract, and (5) the place of residence of the parties, evaluating each factor according to its relative importance with respect to the dispute." Id. at 985 (citing Restatement (Second) of Conflicts of Laws 77. § 188 (2) 719 F.2d at 985. (1971)). Although workers, supplies, and the construction bond carne in from off the reservation, the court concluded that this alone did not satisfy the "8ignificant contacts" test so as to divest the tribe of its exclusive juriseiction over the matter. Id. 78. D. Getches & F. Wilkinson, Federal Indian Law, 429 n.2 (2d ed. 1986). 79. Id. 80. 316 S.E.2d at 877, quoted in D. Getches & F. Wilkinson, Federal Indian Law, 429 n.2 (2d ed. 1986). 81. Id. 82. 565 P.2d at 523. 83. See Paiz v. Hughes, 76 N.M. 562, 417 P.2d 51 (1966). 0(j1la:J u.s. 84. 467 at 141. 85. Id. 86. Id. at 141-42. The tribe soon thereafter amended their tribal code to grant the tribal court subject matter jurisdiction over all civil causes of action arising within the boundaries of the reservation. u.s. 467 at 142 n.l. u.s. 87. 467 8 8. Id. at 14 9. 89. Id. at 158. 90. 364 N.l-J.2d 98, 104 (N.D. 1985). 91. 467 u.s. at 148-49. at 159. Justice Rehnquist stated that "[t]he tribe need merely to consent to the full civil jurisdiction which North Dakota, pursuant to Publ. L. 280, stands ready to offer them. Petitioners want to enJoy the full benefits of the State court8 as plaintiffs without ever runnlng the risk of appearing as defendants. result." The Equal Protection Clause mandates no such 467 U.S. at 166 (Rehnquist, J., dissenting). 92. 364 N.W.2d at 107 (emphasis in original). 93. The Court had noted in its first Three Affiliated Tribes decision that although the Civil Rights Act of 1968 amended Pub. L. 280 by adding tribal consent requirements, those requirements were not made retroactive. 467 U.S. 138 at 150-51. (J(}1ll4 45 94. Three Affiliated TribeE of the Fort Berthold Reservation v. Wold Engineering, P.C., 476 u.s. --, 106 s.ct. 2305, 2314-15 (1986). 95. See generally, id. 96. See generally, Three Affiliated Tribes, 467 U.S. 138 (1984); cf. Paiz v. Hughes, 76 N.M. 562, 417 P.2d 51 (1966) (allowing Indian to sue non-Indian in state court over a matter arising within Indian country). 97. Allowing the non-Indian to bring suit in state court in such a fact situation would be in direct violation of Williams v. Lee, 358 U.S. (1959). Of course, Public Law 280 would sanction the state court action. 98. Most tribal codes provide for civil jurisdiction over non-Indian defendants only when they stipulate to it. See, e.g., Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 467 u.s. 9 9. 141-42 and n.1 (1984). The Court stated, "we intimate no vJ.ev7 concerning the state trial court's jurisdiction over respondent's counterclaim . . • " 467 U.S. at 159. 100. See Canby, 1973 Utah L. Rev. 206, 222 (the strong policy agc:inst repeti ti,·e litigc;tion supports tr.e court's authority to hear compulsory counterclaims). 101. The non-Indian's exclusive forum for adjudicating those separate matters is tribal court. 1973 Utah L. Rev. at 222-23. ()()11~) Cf. Canby, 102. See United States ex rel Cabell v. Cabell, 503 F.2d 790 (9th Cir. 1974), cert. denied, 421 u.s. 999 (1975). 103. Id. 104. Whyte v. District Court, 140 Colo. 334, 346 P.2d 1012 (1959), cert. denied, 363 u.s. u.s. 829 (1960). 105. 358 217 (1959). 106. This conclusion is based on the assumption that Public Law 280 is not in force within the particular state. 107. Probate of trust property is conducted by hearing examiners of the Department of Interior, with appeal to the Secretary. See Tooahnippah v. Hickel, 397 u.s. 598 (1970). 108. See Williams, Too Little Land, Too Many Heirs--The Indian Heirship Land Problem, 46 Wash. L. Rev. 709 (1971). 109. Id. Gt 712. 110. Canby, 1973 Utah L. Rev. at 230 (citing San Carlos Apache Tribe, Ariz., Rev. Law &nd Order Code ch. 4, 4.1 (1956) as well as other tribal codes). u.s. 1 , 29 (1899). 111. See Jones v. Meehan, 175 112. Canby, 1973 Utah L. Rev. at 230. 113. Id. at 230, n.166. 114. 358 115. Canby, 1973 Utah L. Rev. at 230. 116. Id. u.s. 217 (1959). ·(JfJ1f.f) § 47 117. See D. Getches & C. Wilkinson, Federal Indian Law, 437-38 118. (2d ed. 1986). Accord Batchelor v. Charley, 74 N.M. 717, 398 P.2d 49 (1965); see generally, Comment, State Civil Po\·Jer Over Reservation Indians, 33 Mont. L. Rev. 291 (1972). 119. State Securities v. Anderson, 84 N.M. 629, 506 P.2d 786, 789 (1973) 4 9 9 p. 2d 6 91 120. (citing Natewa v. Natewa, 84 N.M. 69, ( 19 7 2) ) . Francisco v. State, 113 Ariz. 427, 556 P.2d 1, 5 (1976). 121. 556 P.2d at 2, n.1. 122. Id. 123. Little Horn, 555 P.2d 211, 212-13. 124. Joe v. Marcum, 621 F.2d at 361. 125. 651 F.2d at 362-63. 126. Little Horn, 555 P.2d at 212. 127. Joe, 621 F.2d at 361; see also Canby, 1973 Utah L. Rev. at 216 n.70 (the largest tribal court system in the country is that of the Navajo Tribe) . 128. See generally, Mudd, Jurisdiction and the Indian Credit Problem: Considerations for a Solution, 33 Mont. L. Rev. 3 0 7 ( 19 7 2) . 129. Canby, 1973 Utah L. Rev. at 226. 130. Id. 131. Id. at 226-27. 132. Red Fox, 542 P.2d 918. 48 133. Id. 134. Red Fox, 542 P.2d at 920. 135. D. Getches & C. Wilkinson, Federal Indian Law, 457 (2d ed. 1986) (citing Laurence, Service of Process and Execution of Judgment in Indian Reservations, 10 Am. Ind. L. Rev. 257, 274-278 (1982), and F. Cohen, Handbook of Federal Indian Law 384-85 (1982 ed.)). 136. D. Getches & C. Wilkinson, Federal Indian Law 457 (2d ed. 19 8 6) • 137. Id. 138. "Full Faith and Credit shall be given in each St2te to ,J the Public Acts, Records, and judicial Proceedinss of every other State. 139. . . . " U.S. Cons t. , art. IV, Santa Clara Pueblo v. Martinez, 436 ( 19 7 8) u.s. (citing Mackev v. Coxe, 59 U.S. § 1. 49, 65 n.21 ( 18 How.) 10 0 (1855)). 140. Jim v. C.I.T. Financial Services Corp., 87 N.M. 362, 533 P.2d 751 (1975); accord Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982). 141. Ragsdale, Problems in the Application of Full Faith and Credit for Indian Tribes, 7 N. Mex. L. Rev. 133 (1977). 142. United States v. Wheeler, 435 U.S. 313 (1978). 143. 25 u.s.c. § 1901-1963. 144. 25 u.s.c. § 1902. (}fl1 r.s 49 145. 25 U.S.C. § 1904(4). Welfare Act of 1977: See generally, Indian Child Hearing on 5.1214 Before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess. u.s.c. (1977). 146. 25 147. Id. § 1918. 148. Id. § 1911 (b). 149. Id. §§ 1911 (c), 1912 (a). 150. Barsh, The Indian Child Welfare Act of 1978: § 1911(a). A Critical Analysis, 31 Hastings L.J. 1287, 1288 (1980) ( citing 2 5 U . S . C. §§ 1 9 1 2 ( e ) - ( f ) , 1 9 15 ) (here in after cited as Barsh, 31 Hastings L.J.). (citing 25 u.s.c. 151. Id. 152. Id. 153. Id. 154. Barsh, 31 Hastings L.J. 1287, 1305. 155. Id. 156. See generally, Guerrero, Indian § 1913). (citing 25 U.S.C. §§ 1912 (c), 1951). 1978, 7 l:~m. Chile~ v;elfare Act of Ind. L. Rev. 51, 57 n.8 (1979); see also, Barsh, 31 Hastings L.J. at 1288-1299. 157. D. Getches & C. Wilkinson, Feder~l ed. 1986). 158. Barsh, 31 Hastings L.J. at 1334. 159. Id. 160. Id. 161. 231 Kan. 199, 643 P.2d 168 (1982). 001fr9 Indian La~, 457 (2d 50 162. 643 P.2d at 172. 163. Id. The court conceded that it would be unconstitu- tional to allow the adoption of the illegitimate boy without the consent of the father based upon the Supreme Court's ruling 1.n Caban v. Mohammed, 441 U.S. 380 (1979). However, the court summarily concluded that when a father of an illegitimate child is found unfit af~er rrcr?r n~tice and hearins, the g~~~ting of the adoption over the father's objections is constitutional. Id. 187-88. ..,.. 164. 643 P.2d 168. 165. Id. at 172. 166. Id. at 175. 167. Id. at 177. 168. 25 169. 25 u.s.c. § 1911 (c). 170. 643 P.2d at 172-73. 171. Id. at 173. 172. :?5 u.s.c. § 1915 (a). 173. u.s.c. § 1903 (4). Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587, 591 ~~~~~~-=~~~~~---------- (lOth Cir. 1985), cert. denied, 107 s.ct. 247 (1987). 174. 140 Mich. App. 594, 364 K.\·J.2d 754 175. 364 N.W.2d at 758. 176. Id. citing 25 u.s.c. § 1912(f). 177. Id. (1985). (citing 25 U.S.C. § 1912(d)-(f) and People 1.n the Interes~ of S.R., 323 N.v~.2d 885 (S.D. 1982)). 0()1]0 51 178. 231 Kan. 199, 643 P.2d 168 (1982): Kiowa Tribe of Oklahoma v. Lewis, 777 F.2d 587 (lOth Cir. 1985), cert. denied, 107 s.ct. 247 (1987). 179. 140 Mich. App. 594, 364 N.W.2d 754 (1985). 180. See BarEh, 31 Hastings L.J. 1287, 1335. 181. See qenerally, M. Price, Law and the American Indian, 210-219 (1973). 182. Id. at 214-215. 183. Rethinking Indian Law, National Lawyers Guild Committee on Native American Struggles, 13 (1982). 184. See M. Price, Law and the American Indian, 214-15 (1973); see , a.J..S0 1 D. Getches and C. Wilkinson, Federal Indian Law, 357 (2d ed. 1986). 185. Goldberg, Public Law 280: The Limits of State Juris- diction Over Reservation Indians, 22 U.C.L.A. L. Rev. 535, 561-62 (1975). 186. Id. at 562. 187. Id. 188. See id. at 541. 189. Id. 190. 28 u.s.c. 191. 358 u.s. 217 (1959). 192. 28 u.s.c. § 1360(b). 19 3. See id. 194. See 28 U.S.C. § 1369(a); see also, D. Getches & C. § 1369(a). Wilkinson, Federal Indian Law 360-62 (2d ed. 1986). 0()111 52 195. 28 U.S.C. § 1369(a). 196. 4L6 197. Id. 198. Id. at 378. 199. Id. at 383. 200. In Kennerly, a tribal council had by resolution u.s. at 375. provided that civil jurisdiction over suits against Indians should be concurrent in state and tribal court. 400 U.S. at 425. The state court exercised jurisdiction in such a case but the Supreme Court reversed, holding that the state could not acquire jurisdiction without following the requirements of Public Law 280 as amended by the 1968 Indian Civil -. Rights Act. Id. at 427-29. {10112