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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