1. IV-D Law and Regulations National Tribal Child Support Association Annual Conference 10:45 AM to 12:00 PM, July 23, 2012 Attorney Paul Stenzel Stenzel Law Office, LLC

2. IV-D Codes and Ordinances Overview: Short review of 45 CFR 309 Case law Jurisdiction Your interests

3. IV-D Codes and Ordinances 45 CFR 309.90 requires tribal law, code, regulations and/or other evidence that provides for: 1.Establishment of paternity for any child up to and including at least 18 years of age. 2.Establishment and modification of child support obligations.

4. IV-D Codes and Ordinances 3. Enforcement of child support obligations, including requirements that tribal employers comply with income withholding; 4. Location of custodial and non-custodial parents.

5. IV-D Codes and Ordinances Over the years tribal courts have decided child support related issues. Let’s take a look.

6. IV-D Codes and Ordinances State of North Caroline, ex rel.; Julia A. Maney v. Billy R. Maney, CV 99-558 (Cherokee 5/27/2005). Cherokee Supreme Court Eastern Band of Cherokee Indians. April, 2000 trial court establishes support order against Dad for $50 per month. Some time after 2000 Dad is convicted of 1 st degree sexual assault against his own daughter. Serving a 20-25 year sentence.

7. IV-D Codes and Ordinances Maney v. Maney, continued Under Cherokee ordinance, the judge can order distribution of an incarcerated member’s per capita payment for support of the children, regardless of whether there is an underlying child support order. In 2004, mom files motion seeking distribution of Father’s entire per capita payment.

8. IV-D Codes and Ordinances Maney v. Maney, continued Dad argues that ordinance violates the Indian Civil Rights Act with respect to equal protection and impairing his rights under a contract. Court rules no suspect class and no contract. “No fundamental right of defendant is impaired....”

9. IV-D Codes and Ordinances Burbank v. Clarke Sr., SC-CV-36-97, Supreme Court of Navajo Nation (1999). Support order had been entered at time of divorce when five minor children (four girls, one boy) were young. Father made almost no payments. One month before youngest child was to graduate from high school, mother filed action to collect unpaid support; sought judgment for $34,900.

10. IV-D Codes and Ordinances Dad claimed he should get a reduction arguing that when each of four girls became pregnant as minors, they were emancipated. Dad also claimed that son dropped out of high school and therefore was emancipated. Trial court agreed and retroactively reduced support obligation by $40 per child ($200 / 5) for dates when each was “emancipated.”

11. IV-D Codes and Ordinances On appeal, the Navajo Supreme Court relied on Navajo common law. Giving birth does not emancipate a minor. Navajo common law requires parent to support children until the child is self-supporting. Age of self-support was younger (teens) in first half of 20 th century. Not the case today. No trial court findings about whether children were factually self-supporting.

12. IV-D Codes and Ordinances Cutting v. Quidgeon, CV-05-0112, Mohegan Tribal Court of Appeals. Petitioner sought recognition of foreign support order and garnishment of per capita payment. Issue was whether Tribal Council resolution use of the term “child” included non-tribal children.

13. IV-D Codes and Ordinances Cutting v. Quidgeon, cont’d. Court reviewed law and concluded that policy was to 1) Have tribal members support their children and 2) that court ordered support for the children of Mohegan members be paid. HELD: Withholding will apply regardless of whether child is a Mohegan tribal member.

14. IV-D Codes and Ordinances In the Matter of: Keith Wyman Babby, Ramona O’Conner v. Wyman Dennis Babby, Appeal No. 217 (Fort Peck 10/31/1996). In 1979 in Oregon State court, parties entered agreement that dad would pay mom $13,750 to end all liability. Agreement was done with counsel for both parties and very detailed and approved by the court in Oregon. Parties subsequently moved to South Dakota.

15. IV-D Codes and Ordinances Fourteen years later, son, through mother, brings court action in Fort Peck Tribal Court claiming agreement is unconscionable and contrary to public policy; and seeks an order of support. Trial Court essentially rules in favor of dad based on previous stipulation and judgment.

16. IV-D Codes and Ordinances O’Connor v. Babby, cont’d Keith appeals. Appellate court analyzes under (then) newly enacted 28 USC 1738B. Court found: It had proper jurisdiction b/c everyone had moved to Fort Peck reservation.

17. IV-D Codes and Ordinances That under 28 USC 1738B the order could be modified if it was modifiable under Oregon law. It was modifiable under Oregon law b/c: –Oregon case law provided that Oregon statute which allowed “compromise” was only for damages to mother and that the parties could not make a bargain prejudicial to a third party (Keith).

18. IV-D Codes and Ordinances Jurisdiction issues Tribes in Wisconsin routinely asserting jurisdiction over off-reservation non-Indians. Are these assertions vulnerable to challenge under federal court doctrines about Indian tribes’ jurisdiction over non-Indians?

19. IV-D Codes and Ordinances Of course, it depends. Let’s review a little. Montana v. U.S., 450 U.S. 544 (1981) "The areas in which such implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe....

20. IV-D Codes and Ordinances These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status." Ibid. (Emphasis added.) 450 U.S. 544, 564 quoting U.S. v. Wheeler, 435 U.S. 313.

21. IV-D Codes and Ordinances More from Montana: Thus, in addition to the power to punish tribal offenders, the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members.

22. IV-D Codes and Ordinances But exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation. 450 U.S. at 564.

23. IV-D Codes and Ordinances Are paternity cases a determination of tribal membership when the putative father paternity will establish the child as a member? Do the amendments to the SSA, inclusion of Tribes in IV-D and 45 CFR 309 constitute an express congressional delegation?

24. IV-D Codes and Ordinances Montana decided only three years after Oliphant. Though Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe. Montana v. U.S., 450 U.S. 544, 565.

25. IV-D Codes and Ordinances Then the Montana exceptions: 1. 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.

26. IV-D Codes and Ordinances 2. 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.

27. IV-D Codes and Ordinances Tribal Child Support Jurisdiction provisions

28. IV-D Codes and Ordinances HOPI – “sufficient contacts” and “acts or conduct which establishes such minimal contacts with the Hopi Tribe or Hopi Reservation so that the exercise of jurisdiction... would not be contrary to traditional notions of fair play and substantial justice.” Essentially International Shoe, 326 U.S. 310 (1945)

29. IV-D Codes and Ordinances Forest County Potawatomi: essentially follows UISFA. Partial list: Served in on rez Consent Residence with child on rez Child on rez as a result of parent’s act or directives.

30. IV-D Codes and Ordinances When conception allegedly occurred in Florida and the non-resident alleged father visited Wisconsin only once following the birth, for an unspecified purpose, the child's residence in the state was an insufficient contact to subject the alleged father to the court's jurisdiction. State ex rel. N.R.Z. v. G.L.C. 152 Wis. 2d 97, 447 N.W.2d 533 (1989).

31. IV-D Codes and Ordinances Oneida Tribe of Indians of Wisconsin: Jurisdiction over: 1)Member of the Tribe 2)Resident of rez who is also Indian 3)Resident of rez who is biological parent of a child who is a member or enrolled member.

32. IV-D Codes and Ordinances Oneida (cont’d): 4. Consent (shown through): a. filing an action with the Court b. Written consent c. Notice of appearance w/o objecting or filing motion to dismiss within 30 days. d. Appearing w/o asserting defense of lack of personal jurisdiction.

33. IV-D Codes and Ordinances TULALIP Paternity Court has jurisdiction over any person who has sexual intercourse within the lands of the Tulalip Reservation with a person who is a member or eligible for membership, with respect to a child who may have been conceived through that act of intercourse.

34. IV-D Codes and Ordinances Menominee Tribe of Indians of Wisconsin: Jurisdiction over: (1) Actions establishing paternity in which the alleged father resides or is domiciled on the Menominee Reservation. (2) Actions establishing child support in which the children for whom support is sought and the person(s) from whom support is sought reside or are domiciled on the Menominee Reservation.

35. IV-D Codes and Ordinances Menominee (cont’d) 3) Actions seeking enforcement of a child support order of a foreign court entered against a person who, at the time filed, resides or is domiciled on the Menominee Reservation. B. Jurisdiction in all other actions. The Menominee Tribal Court shall have jurisdiction over any action brought under this article to the extent not prohibited by other tribal law or federal law.

36. IV-D Codes and Ordinances Is membership alone enough to confer jurisdiction on the tribal court? Consider off-rez relationship between a tribal member and non-Indian where tribal member child is conceived and born. The non-Indian has never set foot on the Reservation. Tribal Court jurisdiction for IV-D issues if non-Indian doesn’t consent and doesn’t appear?

37. IV-D Codes and Ordinances Under federal law, can a tribal court obtain jurisdiction over a non-Indian if the non-Indian consents to tribal court jurisdiction? Where one parent and the child are members and one parent is non-Indian, and all three reside on reservation, what would be the basis for tribal court jurisdiction under Montana and subsequent Supreme Court cases?

38. IV-D Codes and Ordinances What can tribal IV-D departments (and courts) do to make support orders less vulnerable to jurisdictional challenges? Language which recites the importance of child support as critical to the health and welfare of the tribe and its members. Evaluating the pros and cons of broad exercise of jurisdiction. Emphasizing any facts which fit into Montana exceptions. Letting some cases go to state court if bad facts.

39. IV-D Codes and Ordinances Paul Stenzel Stenzel Law Office, LLC PO Box 11696 Shorewood, WI 53211 414-963-9923 (office) 414-534-5376 (cell) www.paulstenzel.com This presentation and materials will be available on my web site.