2. Tribal Child Support Court Orders Stacey Bixby, Moderator, DCSS Program Policy Presenters: ■Judge Richard Blake, Chief Tribal Judge, Hoopa Valley Tribe ■Allan Woodworth, Lead Attorney Humboldt County DCSS ■John Berglund, Managing Attorney Shasta County DCSS ■Ed McCue, Deputy Attorney Riverside County DCSS

3. Session Outline ■Tribal Courts - Judge Richard Blake ■Child Support Orders - Allan Woodworth ■Appearing in Tribal Court - John Berglund ■Income Withholding Orders and Tribal Employers - Ed McCue

4. Tribal Court Overview Presented by: Judge Richard Blake Chief Judge, Hoopa Valley Tribe

5. TRIBAL CHILD SUPPORT ORDERS Tribal State Court Order Jurisdiction Issues Presented by: Allan Woodworth, Supervising Attorney Humboldt County Department of Child Support Services allan.woodworth@co.humboldt.ca.us

6. DEFINITIONS ■The terms Indian and Native American are used interchangeably in this presentation. ■“Tribe” is used generically in reference to any specific Tribal community. ■Definitions of “Indian” and “Indian Tribe” are in 45 CFR 309.05, and “Indian Country” is defined in 18 USC § 1151. ■Tribal TANF – Tribes authorized to administer own TANF programs under PRWORA since 1996. (Presently 15 Tribal TANF programs in California.) ■Tribal IV-D – Tribal IV-D programs authorized and operated by Tribes.

7. Why are Tribal jurisdictional issues important? ■548 recognized Tribes in U.S. as of 2008 (25 USC.479a-1) ■107 recognized Tribes in California ■45 Tribal IV-D programs in U.S. ■0 Tribal IV-D programs in California ■15 Tribal TANF programs in California ■80 plus Tribal Courts in U.S. ■20 Tribal Courts and/or Tribal Court coalitions in California ■Unlimited number of Tribal employers on and off Tribal land IV-D agencies have an obligation to equally provide services to all children and families, including those on Tribal land even where Tribes are not cooperative. Howe v. Ellenbecker (1991) 774 F Supp 1224.

8. How do you know you have a possible Tribal case? 1.One or both parents and or the child is Native American and/or lives on Tribal land. 2.An obligor works for a Tribal employer. 3.The Tribal Court has jurisdiction over the case re pending action or non-P.L. 280 state. 4.The Tribal Court has issued a child support order. 5.The children are receiving Tribal TANF.

9. STATE JURISDICTION – PATERNITY/CHILD SUPPORT ■The Indian Child Welfare Act (ICWA) does not apply in child support cases, so there is no Tribal preemption. ■P.L. Law 280 is a federal law enacted in 1953, which transferred civil and criminal jurisdiction from the federal government to some states in Indian Country. ■California was one of the six mandatory P.L. 280 states, so here the State has jurisdiction over Tribal members and to civil actions arising in Indian Country. ■P.L. 280 civil jurisdiction has been interpreted to be concurrent with Tribal jurisdiction, so Tribal Courts may also address family law matters. ■Exceptions:  Limited 280 – jurisdiction (optional state/disclaimer)  Retrocession (return of jurisdiction by state)  Case law – IOWA v. Whitebreast

10. SERVICE OF PROCESS ■If P.L. 280 state, can serve process in Indian Country. ■If state has jurisdiction over a civil matter, and the parties reside on Tribal land, then it appears service of process on a Tribal member on Tribal land is not prohibited. Nevada v. Hicks (2001) 533 U.S. 353 ■Even if service of process on Tribal land by state agencies is valid, we should respect Tribal sovereignty by: 1.Developing cooperative agreements with Tribes regarding service; 2.Using Tribal law enforcement for service; 3.Service by mail.

11. TRIBAL CIVIL JURISDICTION If P.L. 280 state (re CA), concurrent jurisdiction. In non-P.L. 280 state, the Tribe has the inherent sovereign powers of any sovereign as to internal matters, not external (issue passports), limited by Treaties and express Congressional legislation. Subject matter and personal jurisdiction of Tribe will be based on a factual analysis and Tribal statutes/ordinances.

12. TRIBAL COURT ORDERS ■Tribal child support orders are similar to other “state” orders. They are entitled to full faith and credit, retain CEJ, and can be registered and enforced in state Court. FFCCSOA 28 USC 1738B. ■If multiple state/Tribal orders, states follow UIFSA to determine controlling order. (CA. FC § 4911) ■If a Tribe continues to have CEJ, any modification of the Tribal child support order needs to be filed in Tribal Court. ■Tribal income withholding orders issued by the Tribal Court are binding on a state’s employers.

13. ENFORCEMENT - TRIBAL EMPLOYEE/TRIBAL EMPLOYER ■State courts have no jurisdiction over Tribes or Native American property, such as Tribal land or trust money. (28 USC 1360(b)) ■In California, trust money/per capita is income for purposes of determining child support obligations and loses its identity after distribution. County of Inyo v. Jorge (1991) 227.C.A.3d 487 Marriage of Purnell (1997) 52 C.A. 4 th 527 ■Issue becomes, have order, how to collect?  Direct enforcement – many Tribes/Tribal employers honor IWOs. (Ed will discuss further.)  If Tribal IV-D – interstate process  If Tribal Court – registration to enforce  If no Tribal Court – cooperative agreement with Tribe  If all else fails – OSC-C/PL 270

14. PER CAPITA (Individual Distribution of Tribal Revenue) ■28 USC 1360(b) – P.L. 280 does not extend to encumbrance of personal property of individual Indian. (See Jeff) ■28 USC 1360(c) – States are required to give full force and effort to Tribal ordinance or custom (re Per Capita Ordinance). County of Inyo v. Jeff (1991) 227 C.A. 3d 487 In Re Marriage of Purnel (1997) 52 C.A. 4 th 527 IRMO Jacobsen (2004) 121 C.A. 4 th 1187 ■45 CFR 115.001 – For trust funds, Secretary of Interior (BIA) is administering the duties, or if a Tribe is administering program previously with Secretary of Interior. Some IIM accounts could have per capita revenue. ■45 CFR 115.601(b)(1) – For individual Indian monies (IIM), an Order from a Court of Competent Jurisdiction for child support can encumber the account. ■45 CFR 115.002 – Definition of Individual Indian Money. Appears to be trust assets and can include per capita.

15. PER CAPITA (2) ■45 CFR 115.002 – Definition of Court of Competent Jurisdiction is a federal or Tribal Court with jurisdiction. If there is no Tribal Court with jurisdiction, then state Court with jurisdiction. ■Tribal ordinance can allow. ■Hoopa Tribal Per Capita Ordinance will only enforce for Tribal entity. ■Greenview Rancheria in Plumas County just advised us they will honor IWO against per capita.

16. SPLIT CASES If Tribal TANF and Medi-Cal, you will have a split case, and IV-D will establish and enforce HI portion of case. In California, no Tribal TANF agencies recoup, although some Tribes reduce grants based on our collection and distribution. Some Tribes also refer Tribal TANF recipients to state IV-D for services, or recipients apply on their own, and ongoing case is treated as non-IV-A.

17. MEDICAL SUPPORT ■Health Insurance – No Tribal IV-D requirement that Tribal child support orders include medical support order, but also no prohibition, so Tribal Court may issue health insurance orders. ■If child is entitled to the services of Indian Health Services, that satisfies health insurance requirement, even though it is not health insurance, and obligor does not have to provide through his/her employer even if it is available through is/her employer at a reasonable cost. ■Indian Health Service availability satisfies requirement to obtain health insurance order even when Medicaid received. PIQ 94-06

18. TRIBAL IV-D PROGRAMS - 45 CFR PART 309 ■Presently 45 Tribal IV-D programs in operation. (See interactive list at OCSE website.) ■Allows for use of Tribal customs (Tribal common law). 45 CFR 309.90(b), paternity without GTs. ■Does allow for recoupment to Tribe or State IV-D (not mandatory). 45 CFR 309.115 ■Also provides intergovernmental procedures for cooperation between Tribal IV-D, state, and other Tribal IV-D agencies. (Not aware of any Tribes that have adopted UIFSA; Tribes are not required to adopt.) ■Provides for recognition of child support orders issued by Tribes, Tribal organizations, and states under the Full Faith and Credit for Child Support Orders Act. 28 U.S.C. 1738B ■In-kind support (non-cash) allowed, but must have cash equivalency and cannot be used to satisfy assigned support. 309.105(a)(3)

19. RESOURCES Review federal and State regulations regarding Tribal TANF, Tribal IV-D, and Tribal Codes regarding child support issues. Good sources include: ■CSDA Attorney Sourcebook/Tribal/Child Support Procedures ■OCSE Publication – Tribal and State jurisdiction to establish and enforce child support ■Materials provided in this presentation ■http://tribaltanf.cdss.ca.govhttp://tribaltanf.cdss.ca.gov ■OCSE (http://www.acf.hhs.gov/programs/cse): Tribal Child Support, Tribal IV-D, Tribal TANF, State/Tribal Systemshttp://www.acf.hhs.gov/programs/cse ■45 CFR 309 et. seq., Tribal IV-D Programs

20. An LCSA Perspective on Tribal Court Appearances Presented by: John Berglund Managing Attorney Shasta County DCSS

21. Introduction…Please remember ■Tribes are sovereign nations ■Different nations have different laws ■Different tribes have different laws

22. The Redding Rancheria Tribal Court is located in Shasta County… Are there tribal courts in your county? -It’s OK to ask…

23. What are the requirements for appearing in Tribal Court? There may be: An application process ■Tribal bar fee ■Tribal bar oath ■Tribal court rules specifying who may appear

24. Who decides which classification of LCSA employee appears in Tribal Court? ■First, check the court rules ■Then LCSA determines who to send

25. How do you prepare for tribal court appearances? ■Similar to any other court appearance ■You have to…

26. Know the Law (Tribal and Inter-jurisdictional) ■Obtain access to the tribe’s laws ■Carefully study the laws ■Review inter-jurisdictional principles ■Plan for your lack of experience with the tribe’s laws

27. Know your Case ■Consider preparing more thoroughly than usual ■It’s difficult to “wing it” in a foreign court

28. Determine your Goals and Strategy ■Apply the tribal laws to the facts of your case ■Consider whether your goal can be achieved ■Are there jurisdictional issues to be addressed?

29. What should you expect to see in Tribal Court? There will be a judicial officer but... ■Setup of courtroom may vary ■Type of court personnel may vary ■Manner in which proceedings are recorded may vary

30. How should you conduct yourself in Tribal Court settings? ■Be professional ■Listen carefully to everyone ■Do not interrupt ■Keep an open mind ■Be patient

31. Why should you be the one to volunteer to appear in tribal court? ■For the satisfaction of helping your LCSA establish and enforce child support orders ■To expand your experiences in the workplace and in life

32. IWO’s and Tribal Employers Presented by: Ed McCue Senior Deputy Child Support Attorney Riverside County DCSS

33. Tribal Child Support Court Orders ■Sovereign Immunity  What is it?  History  How does it impact my case?

34. Full Faith and Credit ■Recognition of FFCCSOA  Application  No Federal directive on how such recognition must occur  Existence of Tribal Court/Counsel? ■Comity for Paternity issue ■Cooperative agreements

35. Enforcement of Tribal Orders ■Enforcing Tribal Support Order  Monetary vs. “In Kind” Federal Funding allows for the conversion of the order to a monetary order  Federal funding is the issue here, tribes that don’t are not subject to Federal requirements re: specific enforcement remedies  Tribal IV-D- Tribes may create their own IV-D agency 45 CFR 310 45 CFR 286, 302, 309 associated with

36. Enforcement of Tribal Orders Currently no Tribes in CA are receiving federal funding ■Obligor resides & works on reservation  Non tribal vs tribal employer  Working for the tribe or not  Tribal court can enforce ■Obligor resides on the reservation & works off  Direct enforcement to employer  UIFSA

37. Tribes Enforcing State Support Orders ■Tribes Enforcing State Support Orders  Issues are more likely to arise here  Best to try to serve and enforce off the reservation  Working cooperatively with Tribal entity Riverside – Agua Caliente experience Resolution 49-04

38. Tribes Enforcing State Support Orders ■Earnings  Characterization of the money ■On reservation vs. off reservation (tribal or non tribal business)  Service issues  Resides and works off the reservation Subject to all enforcement remedies

39. Tribes Enforcing State Support Orders  Resides and works on the reservation UIFSA possible – no Tribe has enacted UIFSA nor federal funding for IV-D – therefore not likely Employer in Indian country not required to honor IWO – same reason re: UIFSA  Resides on but works off the reservation Income derived off reservation can seek enforcement against  Non Tribal member works on reservation Sovereign immunity barrier If IV-D program available may ask for assistance

40. CSSIN Letter 10-06 ■Good conversation and direction on handling Tribal issues ■Selected PIQ

41. Conclusion ■Despite the existing case law and statutes develop a working relationship with the Tribes