Journals
Volume 34, No. 2, Spring 2004
Tremors: Justice Scalia and Professor Clinton Re-Shape the Debate over the Cross-Boundary Enforcement of Tribal and State Judgments
Robert Laurence
For many years, the debate regarding the various approaches to the cross-boundary enforcement of tribal and state judgments has appeared to have two principles at its foundation: first, that state enforcement-of-judgment laws do not apply within Indian country, and second, that Congress has the power to require states and tribes to recognize judgments if it sees fit. It is the first of these principles that requires a state-court judgment creditor to use the tribal court system for the coercive enforcement of the judgment, thus raising the question of whether full faith and credit, comity, or something else is the law to be applied in such an enforcement action. And likewise for tribal-court judgment creditors. And it is the second of these principles that has led Congress with increasing frequency to legislate to require full faith and credit to be given to tribal judgments by state and federal courts in specific instances.
Recent writings by Justice Antonin Scalia and by Professor Robert N. Clinton, however, seem to challenge these two foundational principles. Writing in Nevada v. Hicks, Justice Scalia suggested in dicta that state civil process might run to Indian country, thereby allowing a state-court judgment creditor to use the state sheriff to enforce a judgment. And writing in the Arizona State Law Journal, Professor Clinton challenged the heretofore commonly held belief that Congress has a plenary power broad enough to enact a full faith and credit statute reaching into Indian country.
In this article, Professor Laurence discusses the ramifications of these two attacks on the foundation of the full faith and credit debate and argues that both foundational principles should be maintained.
A Different Kind of Symmetry
Kevin J. Washburn
While state supreme courts and legislatures have spent a great deal of time during the last two decades deliberating about how (and whether) state courts should recognize civil judgments from tribal courts and whether to insist on symmetric treatment for their own judgments from tribal courts, a quiet revolution has occurred in the recognition of tribal criminal convictions. Without much deliberation at all, state courts and legislatures have been recognizing tribal criminal convictions in a variety of circumstances, ranging from criminal cases, in which tribal convictions are used as predicates for aggravated state offenses or as relevant criminal history for sentencing, to punitive administrative actions, in which tribal convictions are used as triggers for drivers license revocation or sex offender registration. Given the fundamental American constitutional norm that liberty interests are more fundamental than property interests, Professor Washburn finds it odd that states have been so deliberate and cautious about recognizing civil judgments while unblinkingly recognizing tribal criminal convictions. Professor Washburn argues that if states are willing to trust tribal courts enough to recognize tribal convictions to place Indian defendants in greater jeopardy in state proceedings, states should have littletrouble recognizing tribal civil judgments. In short, Professor Washburn argues for a different kind of symmetry than has been previously addressed in the literature, a symmetry as to the treatment of tribal civil judgments and criminal convictions in state courts.
Compacts, Confederacies, and Comity: Intertribal Enforcement of Tribal Court Orders
Steven J. Gunn
The U.S. Supreme Court has held, time and again, that the inherent powers of American Indian tribal governments are limited, with few exceptions, to tribal members and their activities. Without full territorial sovereignty, tribes are increasingly unable to enact legislation or to adjudicate disputes concerning the activities of non-tribal members, including non-Indians and Indians who are members of other tribes.
No aspect of tribal governance is immune from the erosion of tribal jurisdiction over nonmembers. Even the authority of tribes to recognize and enforce the orders and judgments of other tribal courts is at stake. Such authority is vital, for it allows tribes to unite in the formation of reciprocal cross-boundary regimes in which the orders of each tribe are given effect within the territories of other tribes, thus extending the reach of each tribe’s judicial power. Yet, the authority of tribes to enforce the orders of other tribal courts is predicated on the adjudicative jurisdiction of the enforcing court over the persons against which enforcement is sought. More often than not, in intertribal cases, those persons are non-tribal members. Without complete jurisdiction over nonmembers, tribal courts find themselves increasingly unable to enforce the orders of other tribal courts.
This Article examines these issues, and others, and suggests ways in which tribes can reassert their inherent authority over nonmembers and, in so doing, build the framework for effective intertribal enforcement of tribal court orders. Among the alternatives proposed are the formation of intertribal governing bodies linking historically united or allied tribes and the enactment of intertribal compacts providing for both the reciprocal delegation of tribal jurisdiction between tribes and the reciprocal enforcement of tribal court orders based on principles of comity.
Enforcement of Tribal Court Tax Judgments Outside of Indian Country: The Ways and Means
Scott A. Taylor
Although full faith and credit for tribal court judgments in state courts and the reverse situation, state court judgments enforced through tribal courts, have received substantial scholarly attention, no commentators have looked at the full faith and credit question from the point of view of enforcing tax liabilities. A substantial number of tribes have tax systems and collection of unpaid tribal taxes may force tribal tax officials to seek taxpayer assets located off the reservation. Likewise, states have a history of aggressively asserting their taxes against tribes and their members. Given these realities, state courts will have to consider the enforceability of tribal tax liabilities, and tribal courts will certainly have to decide whether they will assist state tax authorities in their efforts to collect unpaid state taxes owed by tribal members having substantial on-reservation assets. Federal courts may also be involved because tribes are likely to have better luck on jurisdictional questions in the federal forum.
The history of comity and full faith and credit provide a helpful backdrop to the application of these doctrines in Indian Country. The case law in area seems to show that the federal full faith and credit statute itself does not apply to tribes. Congress has enacted several narrow full faith and credit provisions for states and tribes. None of these statutes, however, applies to state or federal tax liabilities. Some states have their own full faith and credit statutes and these rules might enable tribal tax authorities to receive off-reservation enforcement of their tax liabilities.
The Uniform Foreign Money Recognition of Judgments Act provides a possible state law basis for enforcing tribal court tax judgments. This turns out to be an unlikely possibility. Another possibility is comity—a common law rule that permits, but does not require, a state court to recognize a foreign court judgment. The bad news continues, unfortunately. A common law doctrine known as the “revenue rule” provides that comity does not extend to tax liabilities. Does this mean that tribal tax officials should just give up? Maybe yes, maybe no.
Federal courts have begun to develop what they call a federal common law of comity. This developing area of law is promising and could provide a basis for actually getting off-reservation enforcement of tribal court tax judgments. Even without federal comity, tribes and states, because they may have a common interest in promoting cross-border enforcement of tax liabilities, are free to enter into inter-governmental agreements that could provide a basis for off-reservation enforcement of tribal court tax judgments.
Full Faith and Credit, Comity or Federal Mandate? A Path That Leads to Recognition and Enforcement of Tribal Court Orders, Tribal Protection Orders and Tribal Child Custody Orders
Kelly Stoner & Richard Alan Orona
Recognition of tribal court orders by federal and state sovereigns has been less then forthcoming in past years. Such disfavor of tribal court orders has not been diminished even in the face of federal mandates. This lack of respect for the dignity and exercise of tribal sovereignty is especially evident within state jurisdictions. Consequently, this Article identifies and discusses three possible avenues in which tribal court orders may be afforded full faith and credit in state courts.
The first section of the Article examines whether Congress intended for the Full Faith and Credit Act (FFCA), 28 U.S.C § 1738 (1994), to be applied to tribal judgments. Specifically, this section analyses whether the term ‘territory,’ as used in the Full Faith and Credit Act, is applicable to Indian Tribes and how changes in federal Indian policy play a role in such interpretation.
The second section of the Article explores whether the doctrine of comity is a viable method for recognition of tribal judgments. Comity becomes a legally cognizable avenue for tribal court orders to be embraced by outside jurisdictions if it can be shown that Tribal Nations fall within the doctrine of comity’s definition of “foreign nations.”
The third section of this Article examines the requirements of specific congressional mandates that provide full faith and credit to certain types of tribal court orders. Specifically, the Violence Against Women Act (VAWA), 18 U.S.C. §2265 (1994) (amended 2000), mandates that state and tribal sovereigns provide full faith and credit to each jurisdiction’s Protection Orders. However, such reciprocal recognition is qualified. Specific substantive language must be present in the Protection Order in order for the full faith and credit provision of the Act to be invoked. In addition, the codification of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963, represents a manifestation of congressional intent to provided full faith and credit to child custody orders conceived in tribal court. While the literal language of ICWA provides recognition of tribal court orders by Indian Tribes, states and the federal government, such recognition is not unfettered and careful compliance with the ICWA is a prerequisite to recognition.
Finally, in conjunction with the federal mandates of VAWA and ICWA, the Parental Kidnapping Protection Act (PKPA) 28 U.S.C. §1738A (2000), the Uniformed Child Custody Jurisdiction Act (UCCJA) 9 U.L.A. 116-17 (1988) and the Uniformed Child Custody Jurisdiction Enforcement Act (UCCJEA) 9 U.L.A. 249 (1997) may also allow for certain tribal custody orders to overcome state jurisdictional bounds and enjoy full recognition.
The avenues outlined in this Article will provide guidance to practitioners as they support the sovereignty and the sanctity of all Tribal Nations by ensuring that tribal court orders transcend state jurisdictional boundaries.
Damages: The New Mexico Supreme Court, in Aken v. Plains Electric, held that state appellate courts must apply a de novo standard of review when evaluating the constitutional excessiveness of punitive damages. It did so under a perceived mandate from the Supreme Court of the United States in Cooper v. Leatherman
Cynthia Blackwell
While New Mexico juries will continue to play a role in determining the amount of punitive damages, the preservation of that decision is in jeopardy. A punitive damages award may now be challenged as being both constitutionally excessive and excessive under common law. Consequently, state appellate courts will be forced to grapple with a burdensome two-tiered review process complicated by the quasi-de novo approach defined in Aken.
With its differentiation between jury decisions based on fact as opposed to opinion, Aken may open the door for constitutionalizing other types of non-economic damages. This could pave the way for evaluating the constitutional excessiveness of other damages such as pain and suffering, resulting in further erosion of the jury’s function and changing the landscape of civil damages.
