First v. State, Dept. of Social and Rehabilitation Services ex rel. LaRoche

• Decision Date: 23 January 1991
• Docket Number: No. 90-103,90-103
• Citation: 247 Mont. 465,808 P.2d 467
• Parties: , 59 USLW 2635 Jerome FIRST, Jr., Petitioner and Respondent, v. STATE of Montana, DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, ex rel., Faith LAROCHE, Respondent and Appellant. . Heard
• Court: Montana Supreme Court

Page 467

808 P.2d 467

247 Mont. 465, 59 USLW 2635

Jerome FIRST, Jr., Petitioner and Respondent, v. STATE of Montana, DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, ex rel., Faith LAROCHE, Respondent and Appellant.

No. 90-103.

Supreme Court of Montana.

Heard Jan. 23, 1991.

Submitted Feb. 7, 1991.

Decided March 19, 1991.

[247 Mont. 466] K. Amy Pfeifer, Child Support Enforcement Div., Helena, for appellant.

Rene A. Martell and D. Michael Eakin, Montana Legal Services, Wolf Point, for respondent.

Reid Peyton Chambers, Sonosky, Chambers & Sachse, Washington, D.C., Terry Spear, Matovich, Addy & Keller, Billings, Ronald S. Luedemann and Lucille G. Meis, U.S. Dept. of Health & Human Services, Denver, for amicus curiae.

TURNAGE, Chief Justice.

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 Appellant raises the following issue:

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 [247 Mont. 467] Enforcement Division. We reverse the District Court's order.

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 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. 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. Sec. 666(b) and Secs. 40-5-401, et seq., MCA, against Montana unemployment insurance benefits payable to Mr. First, Jr. ¹ Mr. First, Jr., was duly served a copy as required under Sec. 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.'s 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 jurisdiction to enforce his child support obligation. Moreover, Mr. First, Jr.'s 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 CSED's jurisdiction, 1) was preempted by federal treaty or statute, 2) would interfere with the Fort Peck Tribe's self-government, or, 3) would interfere with the Fort Peck Tribal Court's jurisdiction in income withholding 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 res, if the action is in rem or quasi in rem. R. Casad, Jurisdiction in Civil Actions (1983, Supp.1986), Sec. 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's power " 'to hear and determine' " a certain type of controversy. 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-government; 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. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 Although "[g]eneralizations on this subject have become ... treacherous," [citation omitted], our decisions establish several basic principles with respect to the boundaries between state regulatory authority and tribal self-government. Long ago the Court departed from Mr. Chief Justice Marshall's view that "the laws of [a State] can have no force" within reservation boundaries. [Citations 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, Sec. 8, cl 3. [Citation omitted.] This congressional authority and the "semi-independent position" of Indian tribes have given rise to two independent but related barriers to the assertion of state...