1. Tribal Child Support Jurisdiction Wisconsin Tribal Judges Association July 6, 2006 Forest County Potawatomi Community Indian Springs Lodge Paul Stenzel Stenzel Law Office PO Box 11696 Shorewood, WI 53211 414-963-9923 paul@paulstenzel.com www.paulstenzel.com

2. Court Jurisdiction consists of two parts: –Subject matter & –Personal

3. Subject matter jurisdiction Jurisdiction over the subject matter of the suit. –Subject matter jurisdiction is the authority of the court to hear a case about a certain topic or subject. –Subject matter jurisdiction can be general or limited. –Federal courts have limited subject matter jurisdiction. –State courts usually have general, and therefore, broad subject matter jurisdiction. –Tribal courts – vary.

4. Subject matter jurisdiction - Examples Wisconsin Constitution, Art. VII, Sec. 8: Except as otherwise provided by law, the circuit court shall have original jurisdiction in all matters civil and criminal within this state and such appellate jurisdiction in the circuit as the legislature may prescribe by law. The circuit court may issue all writs necessary in aid of its jurisdiction.

5. Subject matter jurisdiction - Examples U.S. Constitution: –Section 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. –Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State; — between Citizens of different States; — between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

6. Subject matter jurisdiction - Examples 28 USC § 1331 - The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 USC § 1332 – (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between— –(1) citizens of different States; –(2) citizens of a State and citizens or subjects of a foreign state; –(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and –(4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States.

7. Subject matter jurisdiction - examples Ho-Chunk: The Trial Court shall have original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Constitution, laws, customs and traditions of the Ho-Chunk Nation, including cases in which the Ho-Chunk Nation, or its officials and employees, shall be a party. Any such case or controversy arising within the jurisdiction of the Ho-Chunk Nation shall be filed in Trial Court before it is filed in any other court. This grant of jurisdiction by the General Council shall not be construed to be a waiver of the Nation's sovereign immunity. Ho-Chunk Constitution, Art. VII, Sec. 5

8. Subject matter jurisdiction - Examples Yavapai-Apache: Jurisdiction of the Court. The tribal courts shall exercise jurisdiction over all cases and controversies, whether civil or criminal in nature, within the jurisdiction of the Tribe, in law and equity, that arise under this document, the laws of the Tribe, by virtue of the Tribe's inherent sovereignty, or which are vested in the tribal courts by federal law. Yavapai-Apache Constitution, Art. VI, Sec. 2.

9. Subject matter jurisdiction – Examples Salish & Kootenai Tribal Code: 1-2-104. Civil Jurisdiction. (1) The Tribal Court of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana, shall have jurisdiction of all suits wherein the parties are subject to the jurisdiction of this Court, and over all other suits which are brought before the Court by stipulation of parties not otherwise subject to Tribal jurisdiction. In suits brought by non-members against members of the Tribes or other persons subject to the jurisdiction of this Court, the complainant shall stipulate in his or her complaint that he or she is subject to the jurisdiction of the Tribal Court for purposes of any counterclaims which the defendant may have against him or her.

10. Subject matter jurisdiction – Examples Salish & Kootenai (cont’d) (2) To the fullest extent possible, not inconsistent with federal law, the Tribes may exercise their civil, regulatory and adjudicatory powers. To the fullest extent possible, not inconsistent with federal law, the Tribal Court may exercise subject matter and personal jurisdiction. The jurisdiction over all persons of the Tribal Court may extend to and include, but not by way of limitation, the following: –(a) All persons found within the Reservation. –(b) All persons subject to the jurisdiction of the Tribal Court and involved directly or indirectly in: (i) The transaction of any business within the Reservation; (ii) The ownership, use or possession of any property, or interest therein, situated within the Reservation; (iii) The entering into of any type of contract within the Reservation or wherein any aspect of any contract is performed within the Reservation; (iv) The injury or damage to property of the Tribes or a Tribal member.

11. Personal Jurisdiction Jurisdiction over the person (or party). The authority of the court to render a binding judgment on a party.

12. Personal Jurisdiction Four basic theories under which a court obtains personal jurisdiction: Presence (when served) Domicile Consent Minimum contacts

13. Personal jurisdiction - Overview International Shoe – 326 U.S. 310 (1945) Foundational U.S. Supreme Court case. –Out of state corporation owed unemployment compensation taxes for salesmen working in State of Washington. –Corporation had no office, warehouse, address or staff other than salesmen. –Just taking orders and shipping from out of state. –Therefore, it argued, no connection to state, no jurisdiction over us.

14. International Shoe – 326 U.S. 310 Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. But now that the capias ad respondendum has given way to personal service of summons or other form of notice, due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “ traditional notions of fair play and substantial justice.” (Internal citations omitted.)

15. Personal Jurisdiction Minimum contacts: –The more minimal the contact of the defendant, the more it must be related to the type of claim brought within the jurisdiction. –The greater the contact, more jurisdiction can be asserted. –What is the nature and extent of the defendant’s connection with the jurisdiction?

16. Subject matter jurisdiction under tribal law Has the Tribe passed a statute or ordinance granting the tribal court jurisdiction over the subject matter of the suit? –General jurisdiction –Arising under –Something else?

17. Personal jurisdiction under tribal law Forest County Potawatomi Child Support personal jurisdiction over non- residents: –The individual is personally served with a summons or other notice within the Reservation. –The individual submits to the jurisdiction of the Tribal Court, by consent, by entering a general appearance or by filing a responsive document having the effect of waiving any contest to personal jurisdiction. –The individual resided with the child on the Reservation. –The individuals resided on the Reservation and provided prenatal expenses or support for the child. –The child resides on the Reservation as a result of the acts or directives of the individual. –The individual engaged in sexual intercourse on the Reservation, and the child may have been conceived by that act of intercourse. –The individual asserted parentage in a declaration of paternal interest filed with the Wisconsin Department of Health and Family Services under s. 48.025, or in a statement acknowledging paternity filed with the State Registrar under s. 69.15(3)(b) 1 or 3. –There is any other basis consistent with the Constitution of the United States and Tribal law for the exercise of personal jurisdiction.

18. Tribal Court jurisdiction as a matter of federal law. Whether a tribal court has jurisdiction over a particular case presents a question of federal law. National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 857 (1987). Federal courts will hear challenges to tribal court jurisdiction after exhaustion of tribal court remedies. Id.

19. Federal test for tribal jurisdiction over non-members Montana v. U.S., 450 U.S. 544 (1981). –To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non Indians on their reservations, even on non Indian fee lands. –A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. –A tribe may also retain inherent power to exercise civil authority over the conduct of non Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Id., at 565-566 (citations and footnote omitted).

20. Strate v. A-1 Contractors, 520 U.S. 438 (1997) Tribal court jurisdiction over non-Indians is tied to the ability of the Tribe to regulate non-Indians. Stated another way, tribal adjudicatory jurisdiction does not exceed tribal legislative jurisdiction.

21. Tribal Child Support Jurisdiction What are the limits of a Tribe’s legislative jurisdiction in the area of child support?

22. Examining tribal court jurisdiction over child support matters Fact pattern #1: –John Red Earth, tribal member, has a child with Jane White, a non-member. Mother and father are unmarried; paternity is not in dispute. –John, Jane and child live together on the Reservation. –Jane applies for services at the Tribal Child Support agency. –Tribe has IV-D funding and a child support ordinance (assume this for all hypos).

23. Fact Pattern #1 Fact pattern: –John Red Earth, tribal member, has a child with Jane White, a non-member. Mother and father are unmarried; paternity is not in dispute. The child is a tribal member. –John, Jane and child live together on the Reservation. –Jane applies for services from the Tribal CSA.  Subject matter jurisdiction - tribal  Personal jurisdiction – tribal  Subject matter jurisdiction – federal  Personal jurisdiction - federal

24. Hypotheticals Montana test: –A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. –A tribe may also retain inherent power to exercise civil authority over the conduct of non Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

25. Fact Pattern #2 John Red Earth, tribal member, files a paternity action in tribal court alleging he is the father of a child born to Jane White, a non-Indian. The child is likely to be eligible for enrollment if John is the biological father. The couple is unmarried. For the last year, John and Jane were a couple living on the Reservation. They are now separated. John lives on the Reservation. Jane lives 25 miles from the Res. in Eagle River. Baby was born and lives in Eagle River. The alleged father has visitation on weekends, sometimes on the Reservation, sometimes in other places. John seeks to establish paternity in the tribal court and have the child enrolled. Jane contests the jurisdiction of the tribal court. Jane’s attorney indicates he will be filing a paternity action in state court.

26. Fact Pattern #2  Subject matter jurisdiction - tribal  Personal jurisdiction – tribal  Subject matter jurisdiction – federal  Personal jurisdiction - federal

27. Fact Pattern # 3 John Red Earth, tribal member, and Jane White, non- Indian, conceive a child in Wausau. The child is born in Wausau. The couple is unmarried. John and Jane live in separate residences in Wausau. John left the Reservation when he was a young boy and has not returned during his adult life. Jane seeks support services from John’s Tribe’s CSA. Jane consents to the personal jurisdiction. John contests the tribal court’s personal jurisdiction over him arguing that personal jurisdiction is lacking under tribal and federal law.

28. Hypothetical – Fact Pattern #3  Subject matter jurisdiction - tribal  Personal jurisdiction – tribal  Subject matter jurisdiction – federal  Personal jurisdiction - federal

29. Another consideration Tribes receiving money under Title IV-D of the Social Security Act have certain obligations to provide service to those who apply. Do the federal statutes authorizing direct payments to Tribes support an argument with respect to tribal jurisdiction to regulate non- members and off-reservation activities? See 42 USC §§ 654 and 655(f)

30. Law in Action considerations What factors might make a parent want tribal over state court jurisdiction and vice versa? –DNA doesn’t lie – so what’s the difference? –Custody and visitation –Tribe’s ability to garnish per capita payment –Different cultures Family law – emotions. What factors would come into play in a Teague situation?