| (Cite
as: 1991 WL 578277 (Mont.A.G.))
Office
of the Attorney General
State
of Montana
*1
Opinion No. 15
July
16, 1991
INDIANS--Applicability of Uniform Enforcement of Foreign Judgments Act to tribal
court judgments;
JUDGMENTS--Applicability of Uniform Enforcement of Foreign Judgments Act to tribal
court judgments;
MONTANA CODE ANNOTATED--Sections 25-9-501 to 25-9-508, 26-3-203;
UNITED STATES CODE--25 U.S.C. § 1911(D),
28 U.S.C. § 1738;
UNITED STATES CONSTITUTION--Article IV, section 1.
HELD:
A judgment, decree, or order of an Indian tribal court
may not be filed as a foreign judgment under the
provisions of the Uniform Enforcement of Foreign Judgments Act, unless
the judgment, decree, or order concerns an Indian child custody
proceeding.
James
C. Nelson
Glacier
County Attorney
P.O.
Box 428
Cut
Bank MT 59427
Dear
Mr. Nelson:
You have requested my opinion on the following question:
May a judgment, decree, or order of an Indian tribal
court be filed as a foreign judgment under the provisions
of the Uniform Enforcement of Foreign Judgments Act?
In 1989 the Montana Legislature enacted the Uniform Enforcement of
Foreign Judgments Act, which is codified at sections 25-9-501 to
508, MCA. The Act provides a procedure for the filing
of a foreign judgment with the clerk of the district
court and permits the clerk to treat the foreign judgment
in the same manner as a judgment of the district
court. § 25-9-503,
MCA. If a judgment creditor utilizes this registration procedure, the
creditor does not need to bring an action or special
proceeding under section 26-3-203, MCA, in order to enforce the
judgment in Montana.
Your inquiry requires me to determine whether a judgment, decree,
or order of an
Indian tribal court may be considered a "foreign judgment" as
that term is used in the Uniform Enforcement of Foreign
Judgments Act. Section 25-9-502, MCA, defines "foreign judgment" for purposes
of the Act as "a judgment, decree, or order of
a court of the United States or of any other
court which is entitled to full faith and credit in
this state." The inquiry thus narrows to the question of
whether a tribal court judgment, decree, or order is entitled
to full faith and credit in Montana.
The "full faith and credit" that is referred to in
section 25-9-502, MCA, is the full faith and credit that
is required by the Constitution of the United States, Art.
IV, § 1,
which provides in pertinent part:
Full Faith and Credit shall be given in each State
to the public Acts, Records, and judicial Proceedings of every
other State.
This
clause applies by its own terms only to judicial proceedings
of a state and makes no reference to judgments of
other entities or jurisdictions. See Multibanco Comermex, S.A. v. Gonzalez,
630 P.2d 1053 (Ariz.Ct.App.1981).
However, the full faith and credit clause also authorizes Congress
to enact laws to implement its provisions, and Congress has
legislatively extended the application of the clause to judgments of
courts "within the United States and its Territories and Possessions."
28 U.S.C. § 1738.
As you have noted in your inquiry, state courts have
not agreed on whether an Indian tribe should be viewed
as a "territory" or "possession" of the United States for
purposes of this
federal statute. See Jim v. CIT Financial Services Corp., 533
P.2d 751 (N.M.1975); In re Buehl, 555 P.2d 1334 (Wash.1976);
Sheppard v. Sheppard, 655 P.2d 895 (Idaho 1982). Cf. Brown
v. Babbitt Ford, Inc., 571 P.2d 689 (Ariz.Ct.App.1977). See also
Felix S. Cohen's Handbook of Federal Indian Law 384-85 (R.
Strickland ed. 1982); W. Vetter, Of Tribal Courts and "Territories"
Is Full Faith and Credit Required?, 23 Cal.W.L.Rev. 219 (1987).
*2
The Montana Supreme Court has not expressly addressed the issue
of the application of 28 U.S.C. § 1738
to tribal judgments. However, the Court has observed that a
tribe is not the equivalent of a state and that
the full faith and credit clause is not applicable to
a tribe. Little Horn State Bank v. Stops, 170 Mont.
510, 555 P.2d 211 (1976). Rather, the Court has stated
that tribal court judgments are treated with the same deference
shown decisions of foreign nations as a matter of comity.
Wippert v. Blackfeet Tribe, 201 Mont. 299, 654 P.2d 512
(1982). See also In re Marriage of Limpy, 195 Mont.
314, 636 P.2d 266 (1981).
In view of these statements by the Montana Supreme Court,
I conclude that in Montana, tribal court judgments, decrees, and
orders may not be filed as "foreign judgments" under the
provisions of the Uniform Enforcement of Foreign Judgments Act.
It is generally agreed that judgments of foreign countries cannot
be registered
under the Uniform Enforcement of Foreign Judgments Act. See Multibanco
Comermex, S.A. v. Gonzalez, supra; In re Marriage of Agathos,
550 N.E.2d 1161 (Ill.Ct.App.1990). Since the Montana Supreme Court treats
tribal court judgments as decisions of foreign nations, it follows
that such judgments are also precluded from utilizing the simplified
registration procedures of the Act. However, as you point out,
although that simplified process cannot be utilized, the holder of
a tribal court judgment still retains the right to bring
an action or special proceeding to enforce the judgment. §§ 25-9-507,
26-3-203, MCA; Wippert v. Blackfeet Tribe, supra. Under the principles
of comity, the tribal court judgment may be recognized and
given effect by the state court in such an action
or special proceeding, not as a matter of obligation but
out of deference and mutual respect. See Leon v. Numkena,
689 P.2d 566 (Ariz.Ct.App.1984); Mexican v. Circle Bear, 370 N.W.2d
737 (S.D.1985); In re Marriage of Red Fox, 542 P.2d
918 (Or.Ct.App.1975).
My conclusion is subject to one exception created by the
Indian Child Welfare Act, which requires the states to give
full faith and credit to the "public acts, records, and
judicial proceedings of any Indian tribe applicable to Indian child
custody proceedings to the same extent that such entities give
full faith and credit to the public acts, records, and
judicial proceedings of any other entity." 25 U.S.C. § 1911(d).
THEREFORE, IT IS MY OPINION:
A judgment, decree, or order of an Indian tribal court
may not be filed as a foreign judgment under the
provisions of the Uniform Enforcement of Foreign Judgments Act, unless
the judgment, decree, or order concerns an Indian child custody
proceeding.
Sincerely,
Marc
Racicot
Attorney
General
44 Mont. Op. Atty. Gen. No. 15, 1991 WL 578277
(Mont.A.G.)
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