| (Cite
as: 1986 WL 235007 (Okl.A.G.))
Office
of the Attorney General
State
of Oklahoma
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Opinion No. 85-94
February
20, 1986
The
Honorable Enoch Kelly Haney
State
Representative
District
28
432D
State Capitol Building
Oklahoma
City, OK 73105
Dear
Representative Haney:
The Attorney General has received your request for an official
opinion asking, in effect:
1.
Does the Court of Indian Offenses found at 25 C.F.R.
§ 11.1
et seq. have jurisdiction over civil proceedings involving members of
western Oklahoma
Indian tribes served by the Anadarko Area Office of the
Bureau of Indian Affairs?
2.
If the answer to the first question is in the
affirmative, are such decrees, orders, judgments and other final rulings
by the Court of Indian Offenses entitled to recognition by
the State of Oklahoma?
The Commissioner of Indian Affairs, with the authority vested in
him by 25 U.S.C. § 2,
promulgated regulations in 1979, codified at 25 C.F.R. §§ 11.1
et seq., which created a Court of Indian Offenses for
certain western Oklahoma Indian tribes which are served by the
Anadarko Area Office of the Bureau of Indian Affairs. 25
C.F.R. § 11-1(a)19.
The tribes served by the Anadarko Area Office of the
Bureau of Indian Affairs will be referred to collectively as
"Tribes" for the purposes of this opinion.
In order to answer the questions asked, both the regulations
which established the Court of Indian Offenses and the Indian
Child Welfare Act (25 U.S.C. §§ 1901
et seq.) must be taken into consideration. Further, this opinion
deals only with questions of civil jurisdiction and does not
address issues of criminal jurisdiction.
In regard to civil jurisdiction, 25 C.F.R. § 11.22
details the jurisdiction of the Court of Indian Offenses. It
states that "The Court of Indian Offenses shall have jurisdiction
of all suits wherein the defendant is a member of
the tribe or tribes within their jurisdiction and of all
other suits between
members and nonmembers which are brought before the courts by
stipulation of both parties." Therefore, in order for the Court
of Indian Offenses to have jurisdiction, the transaction which gave
rise to the proceedings, must have occurred within Indian Country,
which is defined at 18 U.S.C. § 1151:
"(a) [A]ll land within the limits of any Indian reservation
under the jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running through the
reservation, (b) all dependent Indian communities within the borders of
the United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of
a state, and (c) all Indian allotments, the Indian titles
to which have not been extinguished, including rights-of-way running through
the same."
Though this section of law originally was intended to define
only the criminal jurisdiction of Indian courts, the United States
Supreme Court has made the following comment:
". . . While § 1151
is concerned, on its face, only with criminal jurisdiction, the
Court has recognized that it generally applies as well to
questions of civil jurisdiction." DeCoteau v. District County Court for
the Tenth Judicial District, 420 U.S. 425, 427, n. 2,
95 S. Ct. 1082, 1084, n. 2, 43 L. Ed.
2d 300, 304 n. 2 (1975).
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In addition to the above, either both parties to the
proceedings or the defendant in the proceedings must be members
or a member of one of the Tribes. Any other
suit involving members and nonmembers may be brought before the
Court of Indian Offenses by stipulation of the parties.
In addition to the jurisdiction vested in the Tribes by
25 C.F.R. § 11.22,
the Tribes are given exclusive jurisdiction under the Indian Child
Welfare Act (25 U.S.C. §§ 1901
et seq.) in child custody proceedings involving an Indian child
who resides or is domiciled on a reservation, or is
a ward of the tribal court. 25 U.S.C. § 1911(a).
Reservation, as used in the Indian Child Welfare Act, means
Indian Country as defined by 18 U.S.C. § 1151
and any lands not covered by that section, title to
which is held by the United States in trust for
any Indian tribe or individual or held by any Indian
tribe or individual subject to a restriction by the United
States against alienation. 25 U.S.C. § 1903(10).
It is then clear from a reading of the regulations
and statutes cited above that the Court of Indian Offenses
does have civil jurisdiction over actions arising in Indian Country
among members of the Tribes and that in child custody
proceedings as defined above, the Court of Indian Offenses has
jurisdiction exclusive of the State of Oklahoma. Therefore, the answer
to Question One is in the affirmative and the Court
of Indian Offenses does have jurisdiction over civil actions for
the Tribes served by the Anadarko Area Office of the
Bureau of
Indian Affairs.
In regard to the second question as to whether or
not decrees, orders, judgments, and other final rulings of the
Court of Indian Offenses are entitled to recognition by the
State of Oklahoma, the Indian Child Welfare Act must first
be examined.
At 25 U.S.C. § 1911(d),
the following language is found:
"The United States, every State, every territory or possession of
the United States, and every Indian tribe shall 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."
From a reading of the foregoing statute, it is plain
that the State of Oklahoma is required to recognize decrees,
orders, judgments, and other final rulings of the Court of
Indian Offenses, which involve its jurisdiction under the Indian Child
Welfare Act, by extending full faith and credit to all
such decrees, orders, judgments, and other final rulings.
As to extending recognition by the State of Oklahoma to
actions of the Court of Indian Offenses, other than those
involving the Indian Child Welfare Act, there is no federal
decision, statute, or regulation which requires the same. All the
jurisdictions which have considered this question have accorded recognition
to judgments of Indian courts either on the basis of
full faith and credit or under the conflicts of law
principle of comity. Those states which have accorded recognition by
full faith and credit are New Mexico, Jim v. CIT
Financial Services Corporation, 533 P.2d 751 (N.M. 1975); Idaho, Sheppard
v. Sheppard, 655 P.2d 895 (Idaho 1982); and Washington, Matter
of the Adoption of Buehl, 555 P.2d 1334 (Wash. 1976).
Those states which have extended recognition via comity are Arizona,
Brown v. Babbit Ford, Inc., 571 P.2d 689, 695 (Ariz.
App. 1977), and Oregon, Matter of the Marriage of Red
Fox, 542 P.2d 918 (Or. App. 1975). Based on a
survey of the current state of the law, it appears
that decrees, orders, judgments, and other final rulings of the
Court of Indian Offenses are entitled to recognition at least
under the theory of comity as expressed in Hilton v.
Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L.
Ed. 95 (1895). Comity may be afforded foreign decrees if
the court had subject matter and personal jurisdiction, the decree
was not obtained fraudulently, the legal system whose decree is
to be recognized afforded basic due process protection, and the
decree does not contravene public policy of the recognizing jurisdiction.
These criteria are presumptively met by orders, decrees, judgments, and
other final rulings of the Court of Indian Offenses. Duly
authenticated judgments are entitled to a presumption that the rendering
court had personal and subject matter jurisdictions, Simms v. Hobbs,
411 P.2d 503 (Okl. 1966), though subject matter and personal
jurisdiction are always
open to inquiry by the State. Allen v. Allen, 209
P.2d 172 (Okl. 1948); appeal dismissed and cert. denied, 336
U.S. 956, 69 S. Ct. 891, 93 L. Ed. 1110.
Due process and equal protection are guaranteed to litigants in
the Court of Indian Offenses by the Indian Civil Rights
Act of 1968. 25 U.S.C. § 1302(8).
*3
It is, therefore, the official opinion of the Attorney General
that:
1. The Court of Indian Offenses for the tribes served
by the Anadarko Area Office of the Bureau of Indian
Affairs has exclusive jurisdiction over child custody proceedings pursuant to
the Indian Child Welfare Act (25 U.S.C. §§ 1901
et seq.) when the child is domiciled or resides in
Indian Country as defined by 18 U.S.C. § 1151
and 25 U.S.C. § 1903(10)
or when the child is a ward of the Court
of Indian Offenses, 25 U.S.C. § 1911(a);
2. The Court of Indian Offenses for the tribes served
by the Anadarko Area Office of the Bureau of Indian
Affairs has exclusive jurisdiction of civil actions pursuant to 25
C.F.R. § 11.22
which arise in Indian Country as defined by 18 U.S.C.
§ 1151
when the actions involve tribal members or wherein the defendant
is a tribal member;
3. Decrees, judgements, orders and other final rulings of the
Court of Indian Offenses for the tribes served by the
Anadarko Area Office of the Bureau of Indian Affairs which
have been entered in child custody matters pursuant to the
Indian Child Welfare Act (25 U.S.C. §§ 1901
et seq.) must be
accorded full faith and credit by the State of Oklahoma
since such is required by federal statute found at 25
U.S.C. § 1911(d);
and
4. All other decrees, orders, judgments, and final rulings of
the Court of Indian Offenses for the tribes served by
the Anadarko Area Office of the Bureau of Indian Affairs
may be recognized by the State of Oklahoma under the
theory of comity if such decrees, orders, judgments and other
final rulings meet the requirements set forth in Hilton v.
Guyot, 159 U.S. 113, 16 S. Ct. 139, 40 L.
Ed. 95 (1895); decrees, orders, judgments and other final rulings
of the Court of Indian Offenses for the tribes served
by the Anadarko Area Office of the Bureau of Indian
Affairs presumptively meet these requirements.
Michael
C. Turpen
Attorney
General of Okalhoma
Stephen
A. Lamirand
Assistant
Attorney General
17 Okl. Op. Atty. Gen. 159, Okl. A.G. Opin. No.
85-94, 1986 WL 235007 (Okl.A.G.)
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