First v. State Dept. Srs Ex Rel. La

No. 90-103
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
JEROME FIRST, JR.,
Petitioner and Respondent,
STATE OF MONTANA, DEPARTMENT OF
SOCIAL AND REHABILITATION SERVICES,
EX REL. , FAITH LAROCHE,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Jeffrey M. Sherlock, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
K. Amy Pfeifer, Child Support Enforcement Division,
Helena, Montana
For Respondent:
Rene A. Martell and D. Michael Eakin, Montana Legal
Services, Wolf Point, Montana
For Amicus Curiae:
Reid Peyton Chambers, Sonosky, Chambers & Sachse,
Washington, D.C.
Terry Spear, Matovich, Addy & Keller, Billings,
Montana
Ronald S. Luedemann and Lucille G. Meis, United
MAR 1 3 1999 States Department of Health & Human Services,
z SAif!t
2
CLERK QF SUPREkIZ 6 0 y R P
Denver, Colorado
STATE OF MQISTANA
Heard: January 23, 1991
Submitted: February 7, 1991
Decided: March 19, 1991
Chief Justice J. A. Turnage delivered the Opinion of the Court.
The State of Montana, Department of Social and Rehabilitation
Services, ex rel., Faith LaRoche, appeals an order of the First
Judicial District, Lewis and Clark County, which held that a
Montana administrative tribunal had no subject matter or personal
jurisdiction to utilize income withholding proceedings against
Montana unemployment insurance benefits payable to Jerome First,
Jr., an enrolled member of the Fort Peck Tribes residing on the
Fort Peck Indian Reservation, for payment of a previously court-
ordered child support obligation. This District Court order
reversed an income withholding fair hearing decision and order of
the State of Montana Child Support Enforcement Division. We
reverse the District Court's order.
Appellant raises the following issue:
May Montana utilize its income withholding procedure against
off-reservation income payable to an Indian, who resides on a
reservation in Montana, to enforce a court-ordered child support
obligation?
FACTS AND PROCEDURE
Jerome First, Jr., married Faith First (now Faith LaRoche) in
Reno, Nevada in March, 1966. After their marriage, the couple
resided on the Rosebud Indian Reservation in South Dakota. The
marriage produced three children. In 1971, the couple separated;
Mr. First, Jr., returned to his home on the Fort Peck Indian
2
Reservation in Montana. On January 20, 1972, a South Dakota state
court issued a divorce decree to the couple. The divorce decree
awarded Ms. LaRoche sole custody of the children and ordered Mr.
First, Jr., to pay Ms. Laroche $50.00 per month per child as child
support.
On August 18, 1986, Ms. LaRoche executed a power of attorney,
which appointed the Office of Child Support Enforcement of the
South Dakota Department of Social Services (OCSE) her attorney-
in-fact to enforce and collect past, current, and future child
support owed by Mr. First, Jr. On April 27, 1988, OCSE executed
an authorization to act as agent in interstate case, as Mr. First,
Jr., was still residing on the Fort Peck Reservation in Montana at
this time. This document authorized the State of Montana,
Department of Social Rehabilitation Services, Child Support
Enforcement Division (CSED) to act as South Dakota's agent to
collect child support owed to Ms. LaRoche. In turn, CSED sought
to give full faith and credit to the child support order of the
state court of South Dakota.
On May 11, 1988, Ms. LaRoche executed an affidavit detailing
the amount of child support she had received from Mr. First, Jr.
Ms. LaRoche s affidavit stated that she received $3,185.32 in child
support payments directly from Mr. First, Jr., from February, 1972,
to August, 1986. This affidavit further stated that Ms. LaRoche
received $1,431.62 in child support payments from August, 1986, to
April, 1987, through the collection efforts of South Dakota's OCSE.
3
Therefore, according to the affidavit, as of May 11, 1988, Mr.
First, Jr., owed Ms. LaRoche $21,433.06 in past child support
payments and owed $50.00 per month in future child support payments
for Christopher N. First, who would not emancipate until June 6,
1989.
On November 23, 1988, Montana's CSED issued a notice of intent
to withhold income, under 42 U.S.C. B 666(b) and 8 5 40-5-401, &
seu., MCA, against Montana unemployment insurance benefits payable
to Mr. First, Jr. Mr. First, Jr. , was duly served a copy as
required under 5 40-5-413, MCA. In response to this notice, Mr.
First, Jr., filed a request for hearing with CSED on December 1,
1988. At the January 5, 1989, telephonic hearing, Mr. First, Jr. Is
attorney argued that, because Mr. First, Jr., was an enrolled
member of the Fort Peck Tribes and had no contacts off the Fort
Peck Indian Reservation where he was living, CSED had no jurisdic-
tion to enforce his child support obligation. Moreover, Mr. First,
Jr. Is attorney argued that the Fort Peck Tribal Court had exclusive
jurisdiction over this matter.
On April 3, 1989, a CSED hearings officer ordered that CSED
was authorized to issue an order to withhold income, determining
that Mr. First, Jr., failed to establish that CSED1s jurisdiction,
1) was preempted by federal treaty or statute, 2) would interfere
with the Fort Peck Tribe's self-government, or, 3) would interfere
. .
' ~ rFirst, Jr s Montana unemployment insurance benefits were
based on employment both on and off the reservation.
4
with the Fort Peck Tribal Court's jurisdiction in income withhold-
ing cases.
On May 4, 1989, Mr. First, Jr., petitioned for judicial review
of this order to the District Court. The District Court reversed
the order in a decision dated November 21, 1989, holding that
Montana did not ''have subject matter or personal jurisdiction
sufficient to allow it to exercise its administrative withholding
procedures in this case." From this decision, the State of
Montana, Department of Social and Rehabilitation Services appeals.
Following the filing of this appeal, on June 21, 1990, the
State of South Dakota Department of Social Services issued an order
for withholding of income to the Bureau of Indian Affairs against
Mr. First, Jr., to enforce his child support obligation. On June
24, 1990, Mr. First, Jr., assigned the Montana Department of Family
Services fifty percent of his future right to Montana unemployment
insurance benefits for payment of his child support obligation.
Based on these two developments, on July 20, 1990, Mr. First, Jr.,
moved this Court to dismiss this appeal on the grounds of res
judicata and mootness. On September 13, 1990, this Court dismissed
this motion.
ANALYSIS
May Montana utilize its income withholding procedure against
off-reservation income payable to an Indian, who resides on a
reservation in Montana, to enforce a court-ordered child support
obligation?
In the past, this Court has held that Montana tribunals lack
subject matter and personal jurisdiction in cases involving Indian
litigants and child support actions when there are no established
off-reservation acts. See Flammond v. Flammond (1980), 190 Mont.
350, 621 P.2d 471; State ex rel. Three Irons v. Three Irons
(1980), 190 Mont. 360, 621 P.2d 476. Here, however, we are
presented with a case of first impression, as this is a child
support enforcement action, with Indian litigants, involving an
income withholding proceeding against off-reservation income in the
form of Montana unemployment insurance benefits. The District
Court held that the Montana administrative tribunal needed and
lacked subject matter and personal jurisdiction to enforce Mr.
First, Jr.'s child support obligation through utilizing the
federally mandated income withholding proceeding against his off-
reservation income. We disagree.
In order for a tribunal to have jurisdiction over a particular
action, the tribunal must have subject matter jurisdiction, and,
either jurisdiction over the person if the action is in personam,
or, jurisdiction over the =,if the action is in rem or m a s i in
rem. R. Casad, Jurisdiction in Civil Actions (1983, Supp. 1986),
g 1.01.
1. Montana's tribunals have subject matter jurisdiction to
issue and enforce an order to withhold income against Montana
unemployment insurance benefits payable to an Indian, who resides
on a reservation in Montana.
Subject matter jurisdiction is a tribunal Is power It1to
hear
and determine1I1 certain type of controversy.
a Standard Oil Co.
v. Montecatini Edison S.p.A. (D.C. Del. 1972), 342 F. Supp. 125,
129-30 (citation omitted). This Court, in State ex rel. Iron Bear
v. District Court (1973), 162 Mont. 335, 512 P.2d 1292, established
a three-part test to determine subject matter jurisdiction in a
matter involving an Indian, enrolled in a tribe and residing on a
reservation:
(1) whether the federal treaties and statutes
applicable have preempted state jurisdiction;
(2) whether the exercise of state jurisdiction
would interfere with reservation self-govern-
ment; and
(3) whether the Tribal Court is currently
exercising jurisdiction or has exercised
jurisdiction in such a manner as to preempt
state jurisdiction.
Iron Bear, 162 Mont. at 346, 512 P.2d at 1299.
In 1980, the United States Supreme Court addressed the issue
of subject matter jurisdiction regarding Indian tribes and tribal
members in White Mountain Apache Tribe v. Bracker (1980), 448 U. S .
Although l'[g]eneralizations on this subject
have become . . .
treacherous,I1 [citation
omitted], our decisions establish several
basic principles with respect to the boun-
daries between state regulatory authority and
tribal self-government. Long ago the Court
departed from Mr. Chief Justice Marshall's
view that Itthe laws of [a State] can have no
forcell within reservation boundaries. [Cit-
ations omitted.] At the same time we have
recognized that the Indian tribes retain
"attributes of sovereignty over both their
members and their territory." [Citations
omitted.] As a result, there is no rigid rule
by which to resolve the question whether a
particular state law may be applied to an
Indian reservation or to tribal members.
Congress has broad power to regulate tribal
affairs under the Indian Commerce Clause, Art
1, 5 8, cl 3. [Citation omitted.] This con-
gressional authority and the Itsemi-independent
positionw of Indian tribes have given rise to
two independent but related barriers to the
assertion of state regulatory authority over
tribal reservations and members. First, the
exercise of such authoritv may be re-empted
by federal law. [Citations omitted.] Second,
it may unlawfully infrinqe Ifon the riqht of
reservation Indians to make their own laws and
be ruled by them.I1 [Citations omitted.] The
two barriers are independent because either,
standing alone, can be sufficient basis for
holding state law inapplicable to activity
undertaken on the reservation or by tribal
members. They are related, however, in two
important ways. The right of tribal self-
government is ultimately dependent on and
subject to the broad power of Congress. Even
so, traditional notions of Indian self-govern-
ment are so deeply engrained in our jurispru-
dence that they have provided an important
llbackdrop,w[citation omitted], against which
vague or ambiguous federal enactments must
always be measured.
White Mountain Apache Tribe, 448 U.S. at 141-43 (emphasis added).
Issues concerning jurisdiction of state courts involving
matters within exterior boundaries of federally recognized Indian
reservations and members of the organized tribes of such reserva-
tions are subject to control by the United States Congress and the
federal courts. The decision of the United States Supreme Court
in White Mountain Apache Tribe followed our decision in Iron Bear
by nearly seven years. In adjudicating jurisdictional matters
involving Indian tribes and tribal members, the United States
Supreme Court is the final authority. Therefore, the more recent
test set forth in White Mountain Apache Tribe is the test to be
-
applied, and for such reason, we are adopting this test. Accord-
ingly, here, we must determine whether: 1) the assertion of
subject matter jurisdiction by Montana's administrative and
judicial tribunals is preempted by federal law, and 2) the
assertion of subject matter jurisdiction by Montana's administra-
tive and judicial tribunals would unlawfully infringe on Fort Peck
Indian Reservation's right to makes its own laws and be ruled by
these laws.
When examining possible federal preemption, the test, when
off-reservation income payable to an Indian is involved, "call[s]
for a particularized inquiry into the nature of the state, federal,
and tribal interests at stake, an inquiry designed to determine
whether, in the specific context, the exercise of state authority
would violate federal law." White Mountain Apache Tribe, 448 U.S.
at 145. Here, the exercise of state authority over this matter
would not violate any existing federal law or treaty.
9
Moreover, the assertion of subject matter jurisdiction by
Montana's tribunals promotes established federal law as well as its
underlying policy. Federal law, 42 U.S.C. 55 601, & sea.,
mandates states, such as Montana, that participate in Aid to
Families with Dependent Children (AFDC), to enact and enforce a
child support enforcement plan that conforms with its requirements
as well as regulations promulgated by the United States Department
of Health and Human Services. In particular, 42 U.S.C. 55
666(a) (1) and (b), and 45 C.F.R. 5 303.100 (1989) mandate these
participating states to enact and enforce income withholding
proceedings to collect outstanding child support owed by parents
absent from the jurisdiction wherein the child support obligation
is owed. Compare 5 5 40-5-401, et sea., MCA. Furthermore, 42
U.S.C. 5 654(19) and 45 C.F.R. 5 302.65 (1989) mandate participat-
ing states to enforce unpaid child support obligations through an
unemployment compensation intercept program. Compare 5 39-51-
3106, MCA. If a participating state fails to comply with the
requirements under 42 U.S.C. 5 5 601 et sea., and the promulgated
regulations, the Secretary of Health and Human Services may impose
financial sanctions to the state. See 42 U.S.C. 5 603 (h) and 45
C.F.R. 5 305.100 (1989).
Accordingly, Montana, as a participating state, is required
by federal law to enforce child support obligations by withholding
the obligor's income, including unemployment insurance benefits,
through methods including income withholding proceedings.
10
Compliance with these federal mandates results in Montana receiving
federal funding for a certain percentage of Montana's costs
associated with establishing and enforcing child support obliga-
tions owed by absent parents. Besides the possible financial
sanctions against Montana, if Montana's tribunals were not allowed
to utilize income withholding proceedings against off-reservation
income payable to absent Indian parents, Montana's recovery of AFDC
benefits provided to children whose absent parents are Indian would
be negatively affected. This would also affect non-AFDC children
whose parents are Indian, such as Mr. First, Jr. Is and Ms.
LaRochels children, as they would be deprived of the income that
would directly be given to them by CSED through income withholding
proceedings. Clearly this result would be contrary to the federal
law's underlying policy of ensuring that absent parents take
responsibility for their children by financially supporting them,
which accordingly reduces the welfare ranks. U.S. Dept. of Health
and Human Services, Office of Child Support Enforcement, Handbook
of Child Support Enforcement (Sept. 1989).
Furthermore, 42 U.S.C. 5 5 601 et seq., are federal statutes
of general application, and as such, apply to all residents of the
United States as well as their property. Federal Power Commission
v. Tuscarora Indian Nation (1960), 362 U.S. 99, 116, 80 S.Ct. 543,
553, 4 L.Ed.2d 584, 596. In the case of Donovan v. Coeur dtAlene
Tribal Farm (9th Cir. 1985), 751 F.2d 1113, the court carved out
three exceptions to this rule:
11
A federal statute of general applicability
that is silent on the issue of applicability
to Indian tribes will not apply to them if:
(1) the law touches "exclusive rights of
self-governance in purely intramural matters1'
;
(2) the application of the law to the tribe
would "abrogate rights guaranteed by Indian
treatiesN; or (3) there is proof "by legisla-
tive history or some other means that Congress
intended [the law] not to apply to Indians on
their reservations. . .
. [Citations omit-
ted. ]
Donovan, 751 F.2d at 1116.
Here, the federal law does not affect Fort Peck Tribe's
exclusive right of self-governance in a purely intramural matter,
which will be more thoroughly discussed below. No federal treaty
exists which guarantees the Fort Peck Tribe the exclusive right to
collect child support from absent parents by means of income
withholding. And, the legislative history of 42 U.S.C. §§ 601,
seu., does not reflect that Congress intended to exclude Indians
from this federal legislation. Therefore, with regard to the first
prong of the White Mountain Apache Tribe test, we find no federal
preemption here.
With regard to the second the White Mountain A~ache
Tribe test, Montana's CSED assertion of subject matter jurisdic-
tion over the income withholding proceeding against Mr. First, Jr.,
does not interfere with the Fort Peck Tribe's right to make its own
laws and be ruled by these laws. Allowing Montana's tribunals to
assert subject matter jurisdiction over this income withholding
proceeding against Montana unemployment insurance benefits does not
prevent the Fort Peck Tribe from continuing to provide a forum for
tribal members with regard to actions including adoptions,
paternity, child support obligations, and garnishments. Moreover,
allowing Montana tribunals to assert subject matter jurisdiction
in such instances would benefit Fort Peck's tribal members by
assisting Indian parents owed child support by absent parents with
off-reservation income.
Mr. First, Jr., argues that the Fort Peck Tribe has exclusive
jurisdiction over all civil matters involving its tribal members
under the Comprehensive Code of Justice enacted by the Fort Peck
Tribal Executive Board (Code). Mr. First, Jr., further argues that
this matter is a domestic affair, or in other words, a "purely
intramural matter" citing Donovan, supra, and accordingly, are
ruled by tribal tradition and custom, under the Code.
The Code, in 5 5 304(b) and 311, does provide for garnishment
of wages for satisfaction of a child support obligation. The Code,
however, does not provide for income withholding proceedings
against a tribal member's off-reservation income to enforce a child
support obligation. Therefore, the Fort Peck Tribal Court provides
no remedy to Ms. LaRoche regarding the off-reservation income of
Mr. First, Jr. Additionally, although this income withholding
proceeding is for the purpose of enforcing a child support
obligation, it is not a domestic affair, dominated by tribal
tradition and custom; it is a collection action, and accordingly,
not an area dominated by tribal tradition and custom. We therefore
13
hold that Montana's tribunals have subject matter jurisdiction over
an income withholding proceeding against off-resewation income
payable to an enrolled tribal member living on a reservation for
payment of a child support obligation.
2. The initiation of income withholding proceedings against
the unemployment compensation benefits is a auasi in rem action,
and therefore, personal jurisdiction over Mr. First, Jr., is not
required.
Quasi in rem jurisdiction is predicated on the existence of
property within the territorial jurisdiction of the forum state.
Hanson v. Denckla (1958), 357 U.S. 235, 247 n. 12, 78 S.Ct. 1228,
1235, 2 L.Ed.2d 1283, 1293. In particular, a form of quasi in rem
jurisdiction known as attachment jurisdiction, is a case where a
judgment creditor seeks to seize property located within the forum
state as payment to enforce a pre-existing claim unrelated to the
property, in other words, a collection action. Id. See also
Restatement 2d of Judqments, 5 8 (1982). Administrative income
withholding proceedings require Montana to exercise jurisdiction
over the B, or thing, and not the person. Therefore, an
administrative income withholding proceeding, a collection action,
is a m a s i in rem action, and here, jurisdiction is not based on
the presence of Mr. First, Jr. , in Montana, but rather, that the
unemployment insurance benefits to be seized are within the
territorial limits of Montana.
14
Prior to Shaffer v. Heitner (1977), 433 U.S. 186, 97 s.ct.
2569, 53 L.Ed.2d 683, presence of the property to be seized was
sufficient to allow a state to exercise in rem and m a s i in rem
jurisdiction. Harris v. Balk (1905), 198 U.S. 215, 25 S.Ct. 625,
49 L.Ed. 1023. But in the case of Shaffer, the Court held that
actions in rem and auasi in rem are subject to the same test
required for in personam actions: 1) the defendant must be shown
to have "minimum contactsn with the forum state, and, 2) a grant
of jurisdiction to the forum state must provide substantial
justice.* Shaffer, 433 U.S. at 207.
A footnote in Shaffer, however, states that, where the action
is to enforce an already determined debt, the defendant's "minimum
contactsn with the forum state are not at issue. Shaffer, 433 U.S .
at 210 n. 36. See also Rich v. Rich (1978), 402 N.Y.S.2d 767;
Berger v. Berger (Vt. 1980) , 417 A. 2d 921; Huggins v. Dienhard ( A z .
1982), 654 P.2d 32; State ex rel. Deptt of Revenue v. Control Data
Corp. (Or. 1986), 713 P.2d 30. Here, because this action is to
enforce an already determined debt, an outstanding child support
obligation, Mr. First, Jr.Is llminimum
contactsN are not at issue.
However, even if Mr. First, Jr. Is *Iminimumcontactsw were at issue,
Mr. First, Jr. , clearly established ttminimumcontacts" with the
h his test originated in the landmark case of International
Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L . E d .
95.
State of Montana by accepting Montana unemployment insurance
benefits, benefits governed under§§ 39-51-101, et sea., MCA.
Finally, allowing Montana tribunals to assert jurisdiction
here would provide substantial justice as the children of Mr.
First, Jr. , and Ms. LaRoche would benefit from the support of their
absent parent. We therefore hold that Montana tribunals have quasi
- - jurisdiction over this collection action against Mr. First,
in rem
Jr. Because we have concluded that Montana tribunals have both
subject matter and quasi in rem jurisdiction here, we hold that
Montana may utilize its income withholding proceeding against Mr.
First, Jr.'s Montana unemployment insurance benefits, thereby
reversing the District Court's order.
Reversed.
We concur:
,
Justice Terry N. Trieweiler, dissenting:
I respectfully dissent from the Opinion of the majority.
The only issue raised by the appellant on appeal was set forth
by the appellant as follows:
Whether the State of Montana, Department of Social and
Rehabilitation Services, Child Support Enforcement
Division has jurisdiction to initiate administrative
income withholding proceedings against State of Montana
unemployment insurance benefits payable to Jerome First,
Jr. an enrolled member of the Fort Peck tribes residing
on the Fort Peck Indian Reservation in payment of a
previously ordered child support obligation.
The District Court found, based upon this Court's previous
decisions in State ex rel. Iron Bear v. District Court (1973), 162
Mont. 335, 512 P.2d 1292 and State et al. v. Flamrnond v. Flammond
(1980), 190 Mont. 350, 621 P.2d 471, that the State had neither
personal nor subject matter jurisdiction in this case.
On appeal, the State argued, and this Court has now agreed
that it had quasi in rem jurisdiction because had jurisdiction
over the unemployment benefits which were paid to Jerome First by
the State of Montana. For that reason, the State's position was
that personal jurisdiction was unnecessary. In fact, the State has
never claimed in any of the proceedings in the District Court that
it had personal jurisdiction over the petitioner.
The District Court's decision was entered on November 21, 1989
and the State's notice of appeal was filed on January 18, 1990.
On June 24, 1990, prior to oral argument or any decision in
this case, First gave a non-revocable assignment of his
unemployment benefits to the Montana Department of Family Services.
He had also obtained employment and was having his income withheld
to meet his child support obligation pursuant to an order of a
South Dakota court. He did not contest the jurisdiction of the
South Dakota court to collect support. At that point there were
no further unemployment benefits to be withheld pursuant to any
order of the District Court or this Court.
Other than the unemployment benefits, there is no known basis
for the State's assertion of quasi in rem jurisdiction at either
the present time or in the future.
For these reasons, First moved to dismiss the State's appeal
for the reason that it is moot.
It is a well-established rule that this Court does not exist
for the purpose of issuing advisory opinions which have no
practical impact on the parties, and that this Court will not hear
cases that have become moot. Adkins v. City of Livingston (1948),
121 Mont. 528, 194 P.2d 238. In fact, this Court has in the past
shown such an aversion to deciding moot issues that it has
dismissed appeals for mootness on its own initiative. Montana
Power Co. v. Charter (1977), 173 Mont. 429, 568 P.2d 118.
In response to First's motion to dismiss, the State asked this
Court to expand the issue that it had originally raised and
determine that it had jurisdiction to withhold income from
successive payors without any suggestion of who they might be or
where they are located.
First's motion was dismissed without explanation. Other than
by passing reference neither is the issue of mootness discussed in
the majority's Opinion.
I disagree with the majority Opinion first of all because the
issue it decided was moot and this Court is not in a position to
speculate whether quasi in rem jurisdiction will exist in the
future without knowing the nature or location of the income in
question.
I also dissent for the reason that this Court's decision
ignores previous precedent which I believe controls the outcome in
this case and which was correctly applied by the District Court.
The appellants briefs and the majority Opinion dedicated
considerable space to the fact that First was delinquent in child
support payments and that the federal government threatens to
withhold welfare funds from states which do not cooperate in the
collection of delinquent child support payments. However, the
proper issue in this case is not whether First is a satisfactory
parent, and it has nothing to do with the myriad of bureacratic
regulations imposed by the federal government. Certainly the State
of Montana cannot be punished for its failure to collect child
support payments when it has no lawful authority for doing so.
The only issue properly before this Court is whether based on
prior decisions of this Court, the State of Montana could exercise
jurisdiction over the petitioner Jerome First, Jr. Clearly it
could not.
In State ex rel. Flammond v. Flammond (1980), 190 Mont. 350,
621 P.2d 471, we dealt with nearly identical facts and found that
the courts of this state had no jurisdiction to enforce child
support payments.
In Flammond, the father was an enrolled member of the
Blackfeet tribe residing within the boundaries of the Blackfeet
Reservation. His former spouse resided in California where she
received public support for their child.
Under California's Uniform Reciprocal Enforcement of Support
Act, a California court found that the father owed a duty of
support and ordered a petition sent to the Glacier County District
Court in Montana for filing of an enforcement action under the
provisions of Montana's Uniform Reciprocal Enforcement of Support
Act (URESA) at 5 40-5-101, et seq., MCA.
In that case, the father moved to dismiss on the grounds that
the court lacked personal and subject matter jurisdiction and we
affirmed. In doing so, we made the following observations which
are relevant in this case:
Here there are absolutely no off-reservation acts in
Montana sufficient to vest state courts with jurisdiction
over the respondent, a reservation Indian. The only off-
reservation acts occurred in California. It is well
settled that a reservation Indian's domicile on the
reservation is not an in-state contact which grants
jurisdiction to state courts. Fisher v. District Court
(1976), supra; Kennerly v. District Court (1971), supra;
Williams v. Lee (1959), 358 U.S. 217, 79 S.Ct. 269, 3
L.Ed.2d 251.
Similarly, there exists no duty to support on the part
of the father in Montana. For, as we have determined,
the Montana courts do not have subject matter
jurisdiction over the transaction in question.
Maybe the most important observation in the Flammond decision
for purposes of this discussion was the following:
... A state may simply not extend its jurisdiction by
judicial fiat no matter how compelling the policy
considerations for doing so may seem if there is no legal
basis to support state jurisdiction. If a remedy other
than tribal court is to exist, Congress must provide it.
621 P.2d at 474.
This Court arrived at a similarly indistinguishable decision
in State ex rel. Three Irons v. Three Irons (1980), 190 Mont. 360,
621 P.2d 476.
The majority Opinion distinquishes Flammond and Three Irons
by the fact that this case is concerned with unemployment insurance
benefits. However, as previously noted, this case is no longer
concerned with unemployment insurance benefits, because there are
none, and if any accrue in the future the petitioner has signed an
irrevocable assignment of those rights to the Child Support
Enforcement Division. The only real difference between this case
and the previous decisions is that in this case the United States
government filed an amicus brief threatening to withhold federal
funding unless we bend Montana law to suit its purposes. However,
those threats are neither credible nor relevant.
Instead of basing its decision on previous decisions in this
Court, the majority chose to base its decision on White Mountain
Apache Tribe v. Bracker (1980), 448 U.S. 136, 100 S.Ct. 2578, 65
L.Ed.2d 665. However, under that decision, Montana cannot assert
subject matter jurisdiction where to do so would infringe on the
Fort Peck Indian Reservation's right to make its own laws and be
ruled by those laws. That is exactly what this Court's decision
does.
The Comprehensive Code of Justice enacted by the Fort Peck
Tribal Executive Board does provide for a method of enforcing and
satisfying child support obligations. What this Court's decision
says is that if the method provided is not satisfactory to the
State of Montana, then the State is free to substitute its system
of collection for the tribal system. That is not consistent with
the White Mountain Apache test.
In a portion of the White Mountain Apache Tribe decision which
is not discussed by the majority, the United States Supreme Court
stated:
When on-reservation conduct involving only Indians is at
issue, state law is generally inapplicable, for the
State's regulatory interest is likely to be minimal and
the federal interest in encouraging self-government is
at its strongest.
488 U.S. at 144.
According to the White Mountain Apache Tribe decision, the
majorityls decision is objectionable because it interferes with
efforts by the tribe to govern themselves in the area of child
support. Those efforts should be encouraged, not frustrated at the
behest of the federal government.
For these reasons, I would affirm the District Court and find
that the State of Montana has neither personal jurisdiction over
the petitioner nor subject matter jurisdictipn in this case.