In Pennsylvania, while there may be cash benefits or welfare assistance available from the government for the care of children, parents are also obliged to pay support for the care and maintenance of their children (alimony). The obligation of one parent to pay child support to the…
Throughout the years and we guess over dozens of cases, the United States Supreme Court has it made clear that Native American tribes are not regulated by the state’s laws and are self-governing and sovereign entities whose powers are only limited by the federal government. As a result, reservations are considered independent of state and local power. With that in mind, what happens when a state court is presented with a divorce where one spouse is Native American?
Does a state court even have jurisdiction (the right to hear a case and make a decision), or power over an enrolled tribal member?
Does a state court have an option of dividing the Native American assets upon divorce?
To begin with, a Native American tribe has jurisdiction over any domestic relations dealing with their members or arising out of their land.
However, in 1953, Congress enacted Public Law (PL) 280 (codified as 18 U.S.C. 1360). This federal law established a method whereby states may assume jurisdiction over criminal offenses involving Native Americans on tribal lands.
Also, PL 280 opened state courts up as forums for civil litigation that had previously only been allowed in tribal or federal court. This statute mandates a transfer of federal law to state government in six states including: California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska. These six states are commonly referred to as “mandatory PL 280 states.” Later on, other states were allowed to elect to have similar power if the tribes within their state gave consent. While several states have elected to transfer jurisdiction upon approval by the native american tribe(s) located within their borders, Ohio is not one of them. Therefore, an Ohio state court must obtain jurisdiction over an enrolled member in another way . . . maybe by where they live if they are residing in the state, or perhaps by the native american tribal member’s participation in the proceedings.
However, it is vtial to keep in mind that even if a state court holds jurisdiction, it may be possible for the native american tribal member to file for divorce in tribal court instead, or to request to have the case transferred to tribal court.
However, it is vtial to keep in mind that even if a state court holds jurisdiction, it may be possible for the native american tribal member to file for divorce in tribal court instead
The question of who has a higher authority over the case is just one of the many potential issues that could arise during a divorce in which one spouse is a Native American.
Looking at native american tribal assets, a non-tribal member may not obtain any interest or right stemming from the tribal membership of their Native American spouse in a case of divorce.
Hence, another possible dispute that can arise is whether or not money that a Native American receives due to their membership can be considered upon divorce.
Some enrolled members of certain tribes receive per capita distributions from reservation resources such as a casino built on the reservation land. Also, others collect funds from leases of “trust land.” The amount that a native american member can receive varies. In some instances it can be a considerable amount, giving the member enough money to live comfortably without having to find work. While the per capita distributions received from a casino are taxable, income received from trust land is not taxable. Thus, when a court is dividing marital assets and calculating things such as spousal support and/or child support, the exact amount of the Native American’s income that can be considered poses a question that courts have struggled with in the past.
For courts that have dealt with such issues, it seems that most have made their decision by relying heavily on the facts of the specific case and the state law in which the case was being heard. As a result, different states have reached different conclusions.
And still another issue that often arises is which court has the power to decide child custody issues when the children themselves are enrolled native american tribal members? The tribal court? The state court? Does it depend on where the child resides? Or how long they’ve resided there? Again, the answers seem to depend on the facts of the case and the specific state’s laws.
Contact One Of Our Experienced Divorce Attorneys To Help Navigate Law Areas Involving Native American Jurisdiction In Ohio
With all of the potential issues one could face when dealing with a divorce in which one spouse is a Native American, it is best to seek professional advice from an attorney who can help you navigate this intricate area of law. Contact one of our experienced family law attorneys today.