Authority of Indian Tribal Court to Issue Garnishment Writs Under 42 U.S.C. § 662(e)

Authority of Indian Tribal Court to Issue
Garnishment Writs Under 42 U.S.C. § 662(e)
A n In d ia n trib a l c o u r t is a “ c o u r t o f c o m p e te n t j u r i s d ic tio n " fo r p u rp o s e s o f issu in g
g a r n is h m e n t w r its u n d e r 4 2 U .S .C . § 6 6 2 (e ), if it h a s th e p o w e r u n d e r trib a l la w to issue
ju d g m e n ts a w a r d in g c h ild s u p p o r t o r a lim o n y .
February 28, 1980
M EM ORANDUM OPINION FOR T H E ASSOCIATE G EN ER A L
COUNSEL, O FFIC E O F PERSO N N EL M AN AG EM ENT
This responds to your request for our opinion whether the Yakima
Indian Nation Tribal Court is a “court of competent jurisdiction” for
purposes of 42 U.S.C. § 662(e), as implemented by the Office of Person­
nel Management’s proposed regulations. 44 Fed. Reg. 60301 (1979) (to
be codified in 5 C.F.R. 581.101-581.501). In our opinion, a tribal court
that establishes garnishment procedures may qualify as a court of com­
petent jurisdiction if it had the power to issue the underlying judgment
awarding child support or alimony. Absent the facts of a particular
case, we do not decide whether any particular tribal court is a “court
of competent jurisdiction.”
In 1975, Congress waived the sovereign immunity of the United
States in proceedings for enforcement of writs of garnishment -issued to
enforce orders for child support or alimony. Pub. L. No. 93-647,
§ 101(a), 88 Stat. 2357, 42 U.S.C. § 659. Prior to that Act, the pay of
federal employees was not subject to attachment for purposes of enforc­
ing court orders, including orders for child support and alimony. See
Buchanan v. Alexander, 45 U.S. (4 How.) 20 (1846); Applegate v. Apple­
gate, 39 F. Supp. 887, 889-90 (E.D. Va. 1941). Reflecting the “impor­
tance the Congress attributes to support payments,” a bill recommended
by the Senate Committee on Finance in 1975 provided that the money
“based upon remuneration for employment” of federal employees, in­
cluding military personnel, would be subject to garnishment in support
and alimony cases. S. Rep. No. 1356, 93d Cong., 2d Sess. 53-54 (1974).
The conference committee adopted this language. H.R. Rep. No. 1643,
93d Cong., 2d Sess. 23 (1974). As enacted, this provision states:
Notwithstanding any other provision of law, effective
January 1, 1975, moneys (the entitlement to which is
based upon remuneration for employment) due from, or
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payable by, the United States (including any agency or
instrumentality thereof and any wholly owned Federal
corporation) to an individual, including members of the
armed services, shall be subject, in like manner and to the
same extent as if the United States were a private person,
to legal process brought for the enforcement, against such
individual of his legal obligations to provide child support
or make alimony payments.
42 U.S.C. § 659. “Legal process” was not defined in the Act.
In 1977, Congress clarified this law by authorizing the issuance of
regulations to administer the law, providing specific conditions and
procedures, and defining the terms used in the garnishment statute. 42
U.S.C. §§661-662. See H.R. Rep. No. 263, 95th Cong., 1st Sess. 35
(1977). It defined legal process as follows:
The term “legal process” means any writ, order, sum­
mons, or other similar process in the nature of garnish­
ment, which—
(1) is issued by (A) a court of competent jurisdiction
within any State, territory, or possession of the United
States, (B) a court of competent jurisdiction in any for­
eign country . . . , or (C) an authorized official pursuant
to an order of such a court of competent jurisdiction or
pursuant to State or local law, and
(2) is directed to, and the purpose of which is to
compel, a governmental entity, which holds moneys
which are otherwise payable to an individual, to make a
payment from such moneys to another party in order to
satisfy a legal obligation of such individual to provide
child support or make alimony payments.
42 U.S.C. § 662(e) (1976 ed., Supp. IV 1980). The question posed is
whether an Indian tribal court is a “court of competent jurisdiction” for
the purposes of this section.
Garnishment is a purely statutory proceeding. See, e.g., Farmers Ins.
Exchange v. Ledesma, 214 F.2d 495, 497-98 (10th Cir. 1954); M ahomet
v. H artford Ins. Co., 3 Wash. App. 560, 477 P.2d 191 (1970). The
federal statute allowing garnishment of federal wages does not create a
right of action, it merely waives sovereign immunity and allows en­
forcement pursuant to laws governing the court in question. Kelley v.
Kelley, 425 F. Supp. 181, 183 (W.D. La. 1977); Harris v. Harris, 40 N.C.
App. 26, 252 S.E.2d 95, 96-97 (1979). Accordingly, it has been held
that a right to subject an employee’s wages to the claims of the plaintiff
must exist under state law. D iaz v. Diaz, 568 F.2d 1061, 1063 n.l (4th
Cir. 1977). A tribal court can be a court of competent jurisdiction for
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purposes of issuing garnishment writs, therefore, only if tribal law
creates a right of garnishment.
A writ of garnishment for purposes of § 659 must be based on a valid
judgment that the funds are due and owing to the plaintiff. Accord­
ingly, the court issuing the underlying judgment must have had both
subject matter jurisdiction and personal jurisdiction over the parties. It
is clear that many tribal courts, including the Yakima Indian Nation
Tribal Court, are courts of competent jurisdiction in domestic relations
cases. Confederated Tribes and Bands o f the Yakima Indian Nation v.
Washington, 608 F.2d 750, 752 (9th Cir. 1979). It has been held that the
power to regulate the domestic relations of its members is among the
powers which tribes possess by virtue of their quasi-sovereign status.
See Fisher v. District Court, 424 U.S. 382, 390 (1976); United States v.
Quiver, 241 U.S. 602, 603-04 (1916); Conroy v. Conroy, 575 F.2d 175,
181 —82 (8th Cir. 1978). In Fisher, the Court ruled that tribal jurisdiction
over a proceeding for adoption, by Indians, of a son of Indian parents,
where all parties resided on the reservation, was exclusive. 424 U.S. at
389. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978), the
Court noted that tribal courts have repeatedly been recognized as
appropriate forums for the exclusive adjudication of disputes affecting
important personal and property interests of both Indians and non-
Indians.
In light of these holdings, it must be recognized that many tribal
courts are courts of competent jurisdiction for purposes of alimony and
child support decrees. The federal garnishment statute, which defines
“child support” and “alimony,” refers to judgments “issued in accord­
ance with applicable State law by a court of competent jurisdiction.” 42
U.S.C. § 662(b) and (c) (1976 ed., Supp. IV 1980) (emphasis added). We
do not read this definition to exclude tribal court judgments, however.
There is no evidence that Congress meant to exclude tribal law. The
committee reports cited above do not discuss the question of tribal
court jurisdiction. It is likely that the issue simply did not arise. The
intent of the law, however, was to remove a barrier against garnish­
ment of federal wages where a valid judgment decreed that alimony or
child support was due. See S. Rep. No. 1356, 93d Cong., 2d Sess. 53-54
(1974). It would defeat the intent of the law, and undermine the integ­
rity of tribal court judgments, to refuse to recognize them as valid
judgments under the garnishment statute.
In sum, we see no legitimate basis either for denying the benefits of
the federal wage garnishment law to Indian litigants or for requiring
them to seek a garnishment writ in state courts. If the tribal court had
jurisdiction over the underlying suit, and if a garnishment right is
created by tribal law, then the tribal court should be considered a court
of competent jurisdiction for purposes of 42 U.S.C. § 662(e) (1976 ed.,
Supp. IV 1980).
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We note that we do not intend to suggest that the federal garnishee
or its agents must examine the jurisdictional basis for the underlying
judgment. Section 659(0 provides:
Neither the United States, any disbursing officer, nor gov­
ernmental entity shall be liable with respect to any pay- .
ment made from moneys due or payable from the United
States to any individual pursuant to legal process regular
on its face, if such payment is made in accordance with
this section and the regulations issued to carry out this
section.
Federal courts have refused to entertain suits against federal defendants
filed by plaintiffs alleging that the defendants recognized invalid state
court judgments. Overman v. United States, 563 F.2d 1287, 1291-92 (8th
Cir. 1977) (held that waiver of sovereign immunity did not include suit
against United States to challenge validity of garnishment based on
allegedly fraudulent divorce decree); Jizmerjian v. Departm ent o f the A ir
Force, 457 F. Supp. 820, 823-24 (D.S.C. 1978) (held that 42 U.S.C.
§ 659(0 insulates the United States from suit challenging garnishment
based on allegedly invalid alimony decree). If the garnishment is pursu­
ant to “legal process regular on its face,” and the federal statute and
regulations are followed, you need inquire no further.
L eon U lm an
D eputy Assistant Attorney General
Office o f L egal Counsel
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