Tribal Sovereignty of Family Law

By Sarah Collins, JD, LLM

Introduction

Infringement doctrines is one of the nuts and bolts legal analyses that state courts use to determine if the state is infringing upon the self-governance of tribes, and tribal courts. Within the subject of family law (such as marriage, divorce, child custody) and the facts determining tribal jurisdiction (tribal laws of domicile, residence, and the court’s jurisdiction to hear a case) are issues which tribal courts continue to be the ideal place to make such determinations. The framework ensures tribal self-governance over social welfare and sovereignty. Within the framework of the infringement analysis, states recognize and uphold tribal authority to govern and self-regulate.

Infringement doctrine is used as an analysis when an Indian raises the claim that the claimant is an Indian, and the court with jurisdiction to hear the claim is a tribal court. This has been raised and upheld as a valid defense in family law issues in state courts. In Thomas v. Fourth Judicial Dist. Court of State ex rel. County of Elko, 124 Nev. 1513 (2008), the Nevada court issues a writ of prohibition based on the state lacking subject matter jurisdiction; finding that the tribal constitution and by laws had laws governing such family law issues, and that the tribal government had not consented to state court jurisdiction:

NRS 41.430(4), federal Indian law principles, and Indian sovereignty mandate that a Nevada state court does not have subject matter jurisdiction over a civil action between an Indian and a non-Indian concerning an occurrence in Indian country or on Indian land if the Indian tribe that occupies that territory has not consented to such jurisdiction. (Snooks v. District Court, 112 Nev. 798, 799–800, 919 P.2d 1064, 1065 (1996).) In Snooks v. District Court, this court noted that the tribe in that case had expressly reserved jurisdiction in civil actions because it had “enacted a broad regulatory scheme” and had explicitly recognized the specific cause of action that was asserted in the district court.( Id. at 802, 919 P.2d 1064, 919 P.2d at 1066–67.) Accordingly, as the tribe in Snooks had not consented to the state court's exercise of jurisdiction, this court concluded that the district court lacked subject matter jurisdiction to hear the underlying civil action. (Id. at 801, 919 P.2d at 1066.)

However, if a member of an Indian tribe is a petitioner in a family law case, some states courts take a presumptive concurrent jurisdiction position and have no requirement to bar the claim from proceeding. (e.g. New Mexico state courts Garcia v. Gutierrez, 217 P.3d 591 (N.M. 2009)). The analysis of jurisdiction assesses, in that scenario, that the tribal member has presumptively waived tribal personal matter jurisdiction in a New Mexico state court proceeding. This framework can be argued to improve access to justice systems for tribal members, who may either file divorce, custody, and others claims in tribal court or state court. But this analysis requires a look at whether the tribal laws (pertinent towards regulation of the enrolled member) govern these kinds of social welfare of their tribal members, and the scope and contours of which the tribal government itself exercises jurisdiction.

This analysis moves from understanding individual rights, which can be waived (similar to the right of speedy trial) to the aggregate rights of the tribal governing body. States do not rightfully hold the power to unilaterally superimpose state jurisdiction and analysis where the tribal government has not expressly given such an agreement (or where the federal government has not given explicit language thereof (e.g. PL-280).

The limits the tribe sets upon itself is a matter of self-determination: whether it regulates such proceedings when the tribal member is domiciled on the reservation (rancheria, colony or otherwise); living inside the reservation; or whether the tribe exercises jurisdiction over Indians in Indian country, established and protected by treaty rights. Mother H. v. Father H. 6 Mash.Rep. 424, 2017 WL 3039105 (Mash. Pequot Tribal Ct.) outlines this framework well. In this case, an Indiana Court determined it had continuing jurisdiction over a divorce action involving and Indian woman and custody matters over an Indian child. Here the tribal court determines the tribal court has jurisdiction, and is not required to decline or defer its jurisdiction under its constitution and bylaws to the state. Significantly, as well, the court determined “The fact that the child resided in Indiana immediately before the commencement of this action and the Plaintiff–Mother instituted an action of dissolution of marriage in that state, which action was still pending, does not divest the Tribal Court of its jurisdiction.”

Scope of Jurisdiction

When tribes exercise jurisdiction over their lands not disestablished (Indian country as defined in 18 U.S.C. § 1151) the principles of self-governance of Indians and tribal courts jurisdiction are more expansive. This can be a misunderstood area for states in piecing together the full breadth of Indian self-governance, as it can overlap with a physical area a state court may identify as under its jurisdiction. In order to be disestablished, there must be an explicit act of the United States federal Congress to disestablish the land as Indian country. Diminishment of Indian country is not enough. While often researchers may observe that congress has paid for a certain area of Indian territory, this does not mean the land, and tribal land rights has been disestablished. Land-use may be altered, but tribal governance and jurisdiction over the territory remains fully intact. Thus, so too does the power of tribal jurisdiction. (See generally McGirt v. Oklahoma, 591 U.S. 894, (2020)).

Nevada State Law Framework Comporting with Tribal Sovereignty

While this analysis works into the individual analysis of each tribes jurisdictional scope of defining Indian country, Nevada state law NRS § 41.430(4) is clear that state jurisdiction is not presumptively concurrent, and “recedes from and relinquishes jurisdiction” from areas where tribes have not provided consent.

Adding into this framework is the ability for tribes to regulate and self-govern with other tribes. (See Hunt v. Hunt, No. (CI) FM88-55A (Ft. McDermitt Tr. Ct., Dec. 28, 1988).

Under this analysis a tribal government may regulate jurisdiction of family law proceedings to differing tribes via contract. Next, the ability for intertribal governance over non-member Indians is also settled. (See Williams v. Lee, 358 U.S. 217 (1959)). Thus, if a tribal member of Reno Sparks Indian Colony resides in an area Walker River Paiute Tribal Nation recognizes as its jurisdictional territory within its constitution, codes, by-laws, treaties, and the Walker River government grants the tribal court to hear disputes with this breadth of this jurisdiction—then tribal court would find it had territorial jurisdiction to hear the claim (and subject matter jurisdiction as the government has laws on marriage, divorce, child custody and so forth).

Infringement doctrine is a matter of if states are overstepping their bounds on issues where the tribal court would have authority to hear the claim, act as factfinder, and make tribal court orders. This framework also dictates that states recognize and enforce tribal court orders. Non-Indians may not be afforded this same defense, however, in some states. For example, in North Dakota, a non-Indian respondent cannot force the Infringement doctrine analysis in order to invalidate tribal court orders (See generally Smith v. Hall 707 N.W.2d 247 (N.D. 2005)).

Delineating Subject Matter Jurisdiction, Personal Matter Jurisdiction and Territorial Jurisdiction

What does remain unsettled is if an Indian petitioner in state court wishes to discontinue the state from exercising jurisdiction in the case. This analysis shifts, because the state may find that the Indian petitioner has presumptively stipulated to the personal matter jurisdiction of the state court, and may look for a new fact which would change or alter the waiver of personal matter jurisdiction. This is to say, can an Indian who has submitted to a state family court proceeding in a civil action be granted dismissal or transfer?

In Nevada, legislatures made the law clear: the state does not have subject matter jurisdiction. Thus, the state court would have erred in finding it had jurisdiction to hear the case. However, in other states, especially ones with less understanding and interaction with tribal governments, appear to have less understanding of tribal court exhaustion, infringement, and breadth of jurisdiction. This state-tribal government conflict is illustrated in Mother H. v. Father H. 6 Mash.Rep. 424, 2017 WL 3039105 (Mash. Pequot Tribal Ct.) Which, in turn, is why the basic framework of tribal court exhaustion and comity is in place: Congress requires states that have opted into the UCCJEA (all but Massachusetts, the District of Colombia, Guam, and the Virgin Islands have) to give full faith and credit to tribal court orders, and tribal courts are not required to have comity with a state court order under the PKPA. This framework acts as an insurance of sorts in the event a state court “gets it wrong” in assessing it has jurisdiction to hear the case, the tribal court can rightfully assert its jurisdiction over the claim, make its findings and issue orders that comport with tribal law. Thereafter, the state must hold the tribal order valid under requirements of comity. (See UCCJEA §104).

Put in another way, the framework isn’t a two-way street. State courts cannot exercise discretion to relitigate tribal court orders under federal law. Tribes, can, however, determine if they have jurisdiction to hear the cause of action and issue its own order, which would had to be enforced in the state. This schema ensures that states cannot override the sovereignty of tribal government over tribal members social welfare on balance.

The enforcement mechanisms of child support orders, however, is a two-way street. For example, if the state has issued the garnishment of wages, the tribal court would uphold such measures. The garnishment, though, would be subject to tribal regulations and definitions of income eligible for garnishment under tribal law for enforcement purposes. Thus, it is not to say that the framework is made so that tribal members may escape child support enforcement, but that the federal system sets to promote a system that recognizes tribal autonomy from states, and order to how that enforcement is carried out under indigenous jurisprudence.

These are the issues where state court judges can work cooperatively with tribes and keep an open-mind to understand the jurisdictional limitations of state authority. It is also the area where tribal law and order committee and tribal councils can expand language in tribal laws that speak to these such issues, which in turn can aid state judges in determining whether or not they are overreaching in finding the state may continue to exercise jurisdiction over child custody orders and modification petitions. States, too, can lead by example in codifying state laws that conform to indigenous jurisprudence, as Nevada has in its conditions for jurisdiction (NRS 41.430(4). Doing so quiets unnecessary state conflict of laws analyses and promotes better neighbors.

Currently, legislatures in the state of Oregon appear to be moving in this direction with Senate Bill 1011. This bill differs though from Nevada in the way it’s carried out. The Oregon bill puts the burden onto individual tribes to waive out of state jurisdiction, whereas the state of Nevada discerns that the state has no jurisdiction unless the tribe explicitly grants these rights to the state. Semantics of how power, control, authority, and autonomy is structured through the language of the bill aside, the core spirit of the bill may finally clean up the jurisdictional headache that Fort McDermitt Paiute and Shoshone tribes has been subjected to because its territories stretch across Nevada and Oregon boundaries. This tribe has been through the wringer in jurisdictional analysis while Oregon remained a PL-280 state, requiring tribal governments to do all the heavy lifting to prove themselves not subject to PL-280. But suffice it to say, we do see state legislatures moving away from entangling themselves into state legal structures which suffocate an autonomous evolution of tribal justice systems.

Building on these foundations of tribal law will not only increase access to justice for tribal members, but will help state court judges navigate the bounds of state jurisdiction. My hope is that this would foster better relations between the tribe and state-- growing dignity, integrity, and respect for tribal court exhaustion and comity. When states govern in ways that respect their tribal neighbors, state judges can better “stay in their lane”.

References

28 U.S.C. § 1738B (Full faith and credit for child support order)

NRS 41.430(4)

Blount v. Blount, 512 P.3d 1254 (Nev. 2022) (Tribal court orders granting child custody to grandmother have full faith and credit in state of Nevada).

Hunt v. Hunt, No. (CI) FM88-55A (Ft. McDermitt Tr. Ct., Dec. 28, 1988)

Garcia v. Gutierrez, 217 P.3d 591 (N.M. 2009) (Determining Indian territory and whether the state district court may exercise concurrent jurisdiction with tribal courts as a matter of comity).

McGirt v. Oklahoma, 591 U.S. 894, (2020)). (In pertinent part here, on diminishment of lands not disestablishment and tribal jurisdiction remains, whereby holding state court had no jurisdiction to hear the case).

Mother H. v. Father H. 6 Mash.Rep. 424, 2017. WL 3039105 (Mashantucket Pequot 2017) (28 U.S.C. section 1738A does not require tribal nations to give full faith and credit to state child custody orders, tribal nations may exercise child custody proceedings and not required to defer to predating state orders).

Smith v. Hall, 707 N.W.2d 247 (N.D. 2005) (Tribal court orders for children born out of wedlock of Indian and non Indian parents are enforceable in state court).

Snooks v. Ninth Judicial Dist. Court, 919 P.2d 1064 (1996) (Nevada court affirms non-Indians do not escape tribal court jurisdiction, tribal court exhaustion doctrine for civil matters within tribal territory).

Thomas v. Fourth Judicial Dist. Court of State ex rel. County of Elko, 124 Nev. 1513 (2008). (Nevada State court does not have jurisdiction in Indian tribal member and non-Indian family court proceedings when the tribal government has not expressly granted state courts jurisdiction).

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