ENFORCING TRIBAL COURT JUDGMENTS IN STATE COURT:
THREE PERSPECTIVES

by Kyme Allison McGaw
Morisset, Schlosser, Homer, Jozwiak & McGaw
1115 Norton Building
801 Second Avenue
Seattle, Washington 98104-1509
(206) 386-5200
k.mcgaw@msaj.com



TABLE OF CONTENTS

I.        INTRODUCTION

II        THE NEED FOR RECOGNITION OF TRIBAL COURT DECISIONS

III.      ORGANIZATION OF TRIBAL COURTS

IV.      THEORIES SUPPORTING STATE COURT ENFORCEMENT OF TRIBAL COURT JUDGMENTS
    A.    Granting Tribal Court Decisions Comity
    B.    Extending Full Faith and Credit to Tribal Court Decisions

V.        THE PROBLEMS WITH ENFORCING A JUDGMENT PURSUANT TO EITHER FULL FAITH
AND CREDIT OR COMITY
    A.    General Considerations
    B.    Future Possibilities for State Court Enforcement
            1.    Washington Proposed Rule 82.5
            2.    Proposed Federal Legislation

VI.        MECHANICS OF STATE COURT ENFORCEMENT OF TRIBAL COURT JUDGMENTS
    A.    Be Alert to the Law to be Applied in the Tribal Court and the Low Governing the Off-Reservation Recognition
    B.    Be Alert to Causes of Action That May Require Off-Reservation Enforcement
    C.    Be Alert to Problems in the Tribal Process That May Lead to Enforcement Problems

VII.    CONCLUSION



I. INTRODUCTION.

          This presentation assumes that the advocate in tribal court has established jurisdiction in the tribal court and has proceeded to judgment. Unfortunately, however, obtaining a final judgment from a tribal court is often only the first step. The work of enforcing that tribal court judgment may become a major portion of the litigation.

        This presentation and these materials attempt to address the practical aspects of this issue. These materials touch only briefly on the theory underlying enforcement of tribal court judgments because those areas are complex and treated in-depth in a number of journals. A selected bibliography is appended to these materials to assist the reader who is seeking more information.

II. THE NEED FOR RECOGNITION OF TRIBAL COURT DECISIONS.

        As P.S. Deloria and Robert Laurence note, although the enforcement of tribal court judgments in state courts may first appear to be a mundane issue:

[T]here is nothing mundane about the issue at all; there are important matters of tribal sovereignty involved in the enforcement question. Both the entry of judgment against non-consenting defendants and the determination to enforce, or not, another government's judgment are acts which only sovereigns do. And this is not tribal sovereignty in the abstract, theoretical Worcester v. Georgia sense that is so commonly discussed in the law reviews. This is tribal sovereignty in the practical sense that is vitally important to the people who actually live and go about their business on Indian reservations. Enforcement of judgments touches the lives of Indian people directly and immediately: a prevailing plaintiff in a tribal court case often must take his judgment off the reservation. A losing defendant in a state court case finds her wages vanishing, or finds the judgment being enforced against specific property in ways that would be quite impossible under traditional tribal ways. Here we find that "platonic notion" of tribal sovereignty being used, or not, in ways that make much more than a symbolic, patriotic difference in people's lives.(1)
        It is the theoretical argument that, if tribal court decisions are not recognized and enforced by state courts, tribal courts are effectively made impotent. The preservation of tribal sovereignty requires that state courts recognize tribal court decisions.(2) From a practical standpoint, however, the preservation of tribal sovereignty is less important to tribal court advocates and their clients than the need to reap the rewards of a hard-fought court battle.

III. ORGANIZATION OF TRIBAL COURTS.

        Tribal courts are playing an increasingly important role in the development of tribal self-government. Tribes can, and do, establish tribal courts as an exercise of their inherent sovereign powers, whether or not the tribal constitution allows for the creation of a tribal court.(3) Many of the tribal courts in which advocates are now litigating are courts established pursuant to a tribe's constitutional or inherent authority.

        On some reservations another type of "tribal" court exists. These courts are different in significant respects from tribal courts established pursuant to inherent tribal authority. In the late 19th century, the Commissioner of Indian Affairs mandated the creation of the Courts of Indian Offenses, commonly referred to as "C.F.R. courts," which operate under the supervision of the Bureau of Indian Affairs.(4) The greatest distinction between the tribal courts and the C.F.R. courts is that the C.F.R. courts, as part of the federal government, apply law contained in the Code of Federal Regulations.(5) The purpose of the C.F.R. courts was to fill the void left when the federal government adjusted or abolished traditional tribal law and order mechanisms.(6)

        As more and more tribes establish courts pursuant to their inherent authority, there becomes less need for the C.F.R. courts. Note, however, that a tribal legislature's creation of a tribal court and adoption of a tribal code does not necessarily result in the dissolution of the C.F.R. court in favor of the tribal court.(7)

IV. THEORIES SUPPORTING STATE COURT ENFORCEMENT OF TRIBAL COURT JUDGMENTS.

        In practice, the standard applied by most state and federal courts to the enforcement of tribal court judgments appears similar to the standard applied to the enforcement of judgments of a foreign state court, whether the reviewing court labels its procedure as granting full faith and credit or comity.(8)

        A. Granting Tribal Court Decisions Comity.

        Comity is the federal common law doctrine that governs enforcement of foreign-nation judicial proceedings.(9) Through comity a sovereign recognizes the acts, decrees, laws, or judgments of another sovereign, primarily as a matter of courtesy.(10) Comity is not a matter of right, and the law does not mandate that comity be applied in every case between two sovereigns.(11) Thus, comity depends on voluntary action by each state court and is interpreted as each state court wishes to interpret it.(12)

        Some states recognize tribal court judgments using a comity rationale because Indian tribes do not clearly stand as states or territories and therefore do not unambiguously qualify for full faith and credit. Comity provides only an inconsistent relationship between state and Indian courts. Because of the uncertainties concerning whether a state court will enforce a tribal court judgment through a common law application of comity, litigants may choose, where states have concurrent jurisdiction, to bring their disputes in state courts to avoid this uncertainty. Some charge that this choice undermines the authority and legitimacy of tribal courts.(13)

        B. Extending Full Faith and Credit to Tribal Court Decisions.

        Nations use the principle of comity to gain recognition for their judgments in other nations, but the Constitution's full faith and credit clause obviates the need for comity between the states:(14)

Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State.(15)
        Full faith and credit is thus a constitutional doctrine, and it has been legislatively applied to cover the federal court system.(16) Full faith and credit is a constitutionally mandated requirement as to state courts and their sister states. Full faith and credit is interpreted essentially the same throughout the nation.

        The full faith and credit clause forecloses most collateral attacks in one state court on judgments rendered by a court in another state. However, the full faith and credit clause is not an "inexorable and unqualified" command.(17) A judgment rendered in one state court may be attacked through those avenues of review that remain open within the state where the original adjudication took place.(18) For example, courts of other jurisdictions remain free to examine whether the deciding court had proper jurisdiction.(19) Similarly, a court may refuse to recognize or enforce the judgment of another state court if the judgment appears to have resulted from procedures incompatible with federal due process concepts, such as notice and fair hearing. A court may also refuse to enforce another state court's judgment where it concludes due process has been violated because the court rendering the judgment lacked a right of appeal or was not sufficiently independent from the legislative and executive branches of the government.(20)

        Collateral attacks on tribal court judgments through assertions of ICRA due process violations are one of the most likely and most difficult challenges the tribal court advocate will face. These challenges are difficult because the precise contours of ICRA due process have yet to be defined, particularly with respect to tribal courts, and because they invite state court scrutiny of the tribal court process. Both the advocate and the tribal court judge should be aware of the strong possibility of this type of a collateral attack and work together to ensure that the procedures satisfy ICRA due process requirements. See discussion below, beginning at page 11.

V. THE PROBLEMS WITH ENFORCING A JUDGMENT PURSUANT TO EITHER FULL FAITH AND
            CREDIT OR COMITY.

        A. General Considerations.

        Neither comity nor full faith and credit precisely fit the context of tribal-state-federal relations. Each of these terms carries extensive historical baggage from contexts outside Indian law.(21) Stretching either principle to cover the tribal court situation may require the advocate to explain -- and defend -- the concept of "tribes as states" for application of the full faith and credit clause or "tribes as nations" for application of comity.(22)

        Both the doctrines of comity and full faith and credit permit collateral attacks on tribal court judgments on grounds of lack of jurisdiction. Hence, the tribal court advocate should argue that the reasoning of National Farmers Union Insurance Co. v. Crow Tribe of Indians(23) applies just as strongly in the tribal-state context as it does in the tribal-federal context: Tribal courts should be the arbiters, at least in the first instance, of the scope of their own jurisdiction.(24) Similarly, because both doctrines permit a tribal court judgment to be attacked on the basis that the tribe lacks separation of powers or an appellate court--all in the guise of a due process attack--the tribal court advocate should consider extending the National Farmers Union principle in an argument that, just as tribal courts should be the first to determine the scope of their own jurisdiction, they should also be permitted to determine, in the first instance, whether their process satisfies ICRA due process concerns.

        One commentator argues that state courts are not likely to enforce tribal court judgments unless the particular Indian tribe grants reciprocal recognition to relevant state court judgments.(25) Indeed, many state statutes will recognize tribal court judgments only if the tribal courts grant reciprocal recognition.(26) However, the notion of mandatory reciprocity offends other commentators. For example, Deloria and Laurence criticize the idea of mandatory reciprocity, unless tribes and states are allowed to opt out of any such statutory scheme in the interests of local concerns.(27)

        A state's statutory acquiescence to enforcement of tribal court judgments under the principle of comity may provide illusory assistance to the tribal court advocate. For instance, South Dakota prohibits its courts from recognizing tribal court decisions as a matter of comity, unless the party seeking enforcement establishes by clear and convincing evidence that each of the following criteria are met:

        (a)    The tribal court had jurisdiction over both the subject matter and the parties;

        (b)    The order or judgment was not fraudulently obtained;

        (c)    The order or judgment was obtained by a process that assures the requisites of an impartial administration of
                justice including but not limited to due notice and a hearing;

        (d)    The order or judgment complies with the laws, ordinances and regulations of the jurisdiction from which it was
                obtained; and

        (e)    The order or judgment does not contravene the public policy of the state of South Dakota.(28)

        This statute in effect requires the tribal court advocate to disprove -- under a heightened standard of proof -- what generally are defenses to enforcement of a foreign judgment.

        B. Future Possibilities for State Court Enforcement.

                1. Washington Proposed Rule 82.5.  Although the Washington Supreme Court recognizes tribal court judgments as a matter of full faith and credit,(29) it has not adopted proposed Civil Rule 82.5. The proposed Civil Rule 82.5 reads as follows:

(a) Indian Tribal Court: Exclusive Jurisdiction. Where an action is brought in the superior court of any county of this state, and where, under the Laws of the United States, exclusive jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court shall, upon motion of a party or upon its own motion, dismiss such action pursuant to CR 12(b)(1).

(b) Indian Tribal Court- Concurrent Jurisdiction. Where an action is brought in the superior court of any county of this state and where, under the Laws of the United States, concurrent jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court may, if the interests of justice require, cause such action to be transferred to the appropriate Indian tribal court. In making such determination, the superior court shall consider, among other things, the nature of the action, the interests and the identity of the parties, the convenience of the parties and witnesses, whether state or tribal law will apply to the matter in controversy, and the remedy available in such Indian tribal court.

(c) Enforcement of Indian Tribal Court Orders, Judgments or Decrees: Full Faith and Credit. The superior courts of the State of Washington shall grant full faith and credit to orders, judgments, and decrees of Indian tribal courts in matters in which either exclusive or concurrent jurisdiction has been granted or reserved to an Indian tribal court of a federally-recognized Indian tribe under the laws of the United States. A superior court shall decline to enforce a tribal court judgment if the superior court finds that the tribal court that rendered the judgment:

        A.    Lacked jurisdiction over a party or the subject matter, or

        B.    Denied due process or any right protected by the 1968 Indian Civil Rights Act; or

        C.    Does not reciprocally provide for recognition and implementation of judgments of the superior
                courts of the State of Washington.

                2. Proposed Federal Legislation. Another possible solution is that Congress will legislatively require enforcement of tribal court judgments in a statute that represents a middle ground between comity and full faith and credit. One proposal for such a statute reads:
State and federal courts shall enforce judicial proceedings of Indian Tribal courts and Courts of Indian Offenses. The enforcing state or federal court may decline to enforce an Indian Court judgment if the court finds that the Indian Court lacked jurisdiction, or denied due process or any other right protected by the 1968 Indian Civil Rights Act. This Act shall apply to any Indian tribe that reciprocally provides for recognition and implementation of judgments of relevant state and/or federal courts.(30)
VI. MECHANICS OF STATE COURT ENFORCEMENT OF TRIBAL COURT JUDGMENTS.

        A. Be Alert to the Law to be Applied in the Tribal Court and the Low Governing the
                    Off-Reservation Recognition.

        The United States Constitution does not apply directly to tribal courts because the tribes' sovereignty predates the Constitution.(31) Most of the tribes now have their own constitutions(32) that generally follow a pattern set down by the BIA in the days beforeself-determination.(33) Tribes also relied on BIA models when they drafted their tribal codes. Consequently, many tribes use a code founded on law written by non-Indians.(34) However, the modem trend is for tribes to revise these codes, replacing them with versions that incorporate traditional tribal law and revised non-Indian law and which better reflect the needs of the tribe and its reservation.

        In addition to the tribal constitution and codified tribal law, tribal courts apply traditional law or law deriving from the tribal codes as far as possible in their adjudications.(35) Tribal court judges then use law from other jurisdictions to fill in gaps in the law.(36) Speaking in the context of trying civil rights cases in tribal courts, one commentator notes: "Simply put, Indian judges and juries respond more readily to concepts and solutions that they can agree will work to solve a problem within reservation society."(37)

        When determining the law governing the case, the tribal court advocate should also determine whether the tribal court's judgments will be recognized in the appropriate state court through a common law or statutory application of comity or full faith and credit or through a court rule.

        B. Be Alert to Causes of Action That May Require Off-Reservation Enforcement.

        Although civil cases may be only one-tenth to one-fifth of the tribal court caseload,(38) civil cases can range from minor contract disputes to large insurance litigations.(39) Other civil litigation brought in tribal courts includes tort disputes, fishing rights, and tax disputes.(40) Final outcomes in these cases will, in turn, result in a variety of judgments. Deloria and Laurence divide the types of judgments into several broad categories. In addition to money judgments, there are domestic relations decrees as well as injunctions and other in personam orders. Finally, there are criminal or quasi-criminal orders, such as arrest and search warrants, extradition orders, and the like.(41) Depending on the subject matter of the tribal court judgment, recognition may be governed by state common law or statute.(42)

        Cases giving rise to enforcement disputes generally involve family law disputes or contract claims between Indian and non-Indian parties.(43) Domestic relations disputes and probate issues are commonly heard by tribal courts.(44) Jurisdiction over domestic relations problems is often viewed as central to the maintenance of cultural integrity.(45) Perhaps because of this view, states may be more willing to recognize tribal court judgments relating to domestic relations.(46)

        C. Be Alert to Problems in the Tribal Process That May Lead to Enforcement Problems.

        Once any jurisdictional disputes are resolved,(47) issues arising under the Indian Civil Rights Act(48) may pose a more serious threat to the enforceability of the final judgment.(49)

        A central problem faced by some tribal courts is the lack of a broad-based, efficient and active appellate division.(50) Furthermore, many tribal courts are not courts of record, and appeals other than de novo reviews are therefore infeasible.

        However, models for regional intertribal appellate systems based on tribal sovereignty and intertribal compacts are already in place in the Dakotas and the Pacific Northwest.(51) And, where these appellate courts are in place, they often provide the appropriate check on the trial court process. For example, in Suquamish Indian Tribe v. Purser,(52) the Suquamish Tribal Court of Appeals reversed the trial court on the ground that the appellate court lacked a complete record of appellant's trial, despite the fact that the trial court operated under the mandate of the tribal code which required that the tribal court's proceedings be recorded.

        Other due process-related concerns focus on the training of tribal court judges. Many of the perceived inadequacies of tribal court judges stem from outdated and even inaccurate information. Unfortunately, this misperception has been perpetuated in law journals:

        This problem [of unfavorable comparison between tribal and state courts] stems partially from the weaknesses of many tribal judges. Tribal judges function in a society vastly more homogenous than broader American society. This homogeneity can put tremendous pressure on tribal judges to make popular rather than legal choices and to overlook principles of due process and equal protection that may seem foreign to tribal society. Too often, elected judges in tightly knit communities are concerned that they will not be reelected if they are too harsh on community members. If they are appointed, judges are often relatives or friends of the appointing body, which is generally the tribal council rather than well-qualified, objectively selected judges. Indian judges are very poorly trained; generally, they are not lawyers or professionals.(53)
Indeed, a state statute hints at the ongoing viability of this misperception:
Reciprocal recognition of certain state and tribal court judgments, decrees, and orders--Conditions.

    The district courts shall recognize and cause to be enforced any judgment, decree, or order of the tribal court ... in any case involving the dissolution of marriage, the distribution of property upon divorce, child custody, adoption, an adult abuse protection order, or an adjudication of the delinquency, dependency, or neglect of Indian children if the tribal court had jurisdiction over the subject matter of the judgment, decree, or order. The tribal court judgment, decree, or order must be rendered by a judge who is a graduate of an accredited law school and holds a current valid License to practice law in at least one state.(54)

The reality is that the training of tribal court judges has greatly improved and often parallels that of similarly situated state court judges.(55) Almost all tribal court judges today have received advanced legal training through tribal judge associations, the National Indian Justice Center, and the National Judicial College at the University of Reno. In addition, there are many other training programs for tribal court judges, which are provided by trained attorneys and practitioners. Only in the rarest of circumstances, such as when faced with a statute like North Dakota's, should the tribal court advocate insist upon a lawyer-trained judge. In the absence of such a statute, the better path is for the tribal court advocate to ensure that the tribal court process satisfies all due process requirements and that the record in the tribal court is complete and accurate.

        The fundamental step requires that the tribal court advocate respect the tribal court and its process. This means showing the same respect for the tribal court and its process and procedures that would be given to a state or federal court. In more practical terms, this means becoming familiar with tribal court personnel -- particularly the court clerk, who can assist the tribal court advocate in locating precedential or analogous decisions of the tribal court, which often are unpublished.(56) If a tribal court advocate thoroughly understands a tribal court's procedure and law, he is in a much better position to defend that judgment before a state court.

        An obvious but often ignored step is to become a member of the tribal court's bar. Many attorneys who would never consider appearing in the court of another state without being admitted to practice before that court nevertheless fail to obtain tribal court bar membership, sometimes with dire results.(57) A summary of the typical requirements of tribal bars is contained in Modern Practice in Indian Courts at 272.

        Similarly, it may be wise to consult with--or in some instances associate with--a tribal court advocate or spokesperson. As one commentator explains:

These non-lawyer members are regularly before the court, are well acquainted with its procedures and customs, and are often skilled practitioners able to try cases to the court with great competence. The court can usually produce a list of advocates who frequently appear.(58)
        Other parts of the tribal court process may not raise to the level of ICRA concerns but may affect off-reservation enforceability nevertheless. For example, while the tribal court procedures and process may satisfy ICRA due process requirements, the final court order and judgment may be insufficiently detailed or analytical to satisfy certain state court requirements. The tribal court advocate should consider it his primary responsibility to ensure that the final order is complete, accurate, and well considered. The first step is for the tribal court advocate to ensure that the tribal court has the value of full briefing on legal issues that will be resolved in orders that may require off-reservation enforcement Another step is for the advocate to prepare detailed proposed findings of fact and conclusions of law that cite to appropriate authority.

        Alert the tribal court to the possibility of the need for off-reservation enforcement early in the case and to the theory of enforcement under which enforcement will be sought. For example, if the tribal court is located in South Dakota, the final order should be drafted so as to establish as many of the requirements of South Dakota statutory comity as possible. Such efforts will likely be rewarded by a detailed and enforceable tribal court final order such as the one attached to these materials.

VII. CONCLUSION.

        As tribal courts take their rightful place in our judicial system, they will issue more judgments that require off-reservation enforcement. The advocate must deal with the issue of off-reservation enforcement on the practical as well as the theoretical levels. The advocate can take numerous simple, common-sense steps to alert the tribal court to the possible need for off-reservation enforcement and should participate in the tribal process such that the procedure and process of the tribal court - as well as the final order - will stand up to the scrutiny of the enforcing court.

BIBLIOGRAPHY

S. BRAKEL, AMERICAN INDIAN TRIBAL COURTS (1978).

Robert N. Clinton, Tribal Courts and the Federal Union , 26 WILLAMETTE L. REV. 841 (1990).

Comment, Conflicts Between State and Tribal Law: The Application of Full Faith and Credit Legislation
        to Indian Tribes, 1981 ARIZ. ST. L. J. 801 (DATE).

P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreements: The Topology of
        the Negotiation and the Merits of the Question, 28 GEORGIA L. REV. 365 (1994).

Ralph W. Johnson, Enforcement of Federal, State and Indian Court Judgments (1994)
        (unpublished manuscript, on file with the author).

Robert Laurence, Service of Process and Execution of Judgments on Indian Reservations,
        10 AM. IND. L. REV. 257 (1982).

Robert Laurence, The Enforcement of Judgments Across Indian Reservation Boundaries: Full Faith
        and Credit, Comity, and the Indian Civil Rights Act, 69 OR. L. REV. 589 (1990).

Fred L Ragsdale, Problems in the Application of Full Faith and Credit for Indian Tribes,
        7 N.M. L. REV. 133 (1977).

Richard E. Ransom, Christine Zuni, P.S. Deloria, Robert N. Clinton, Robert Laurence, Nell Jessup Newton
        and M.E. Occhialino, Jr., Recognizing and Enforcing State and Tribal Judgments: A Roundtable Discussion
        of Law, Policy and Practice, 18 AM. INDIAN L. REV. 239 (1993).

Michael Taylor, Modem Practice in the Indian Courts, 10 U. PUGET SOUND L. REV. 231 (1987).

William V. Vetter, Of Tribal Courts and "Territories": Is Full Faith and Credit Required?,
        23 CAL. W. L. REV. 219 (1987).

Gordon K Wright, Recognition of Tribal Decisions in State Courts,
        37 STAN. L. REV. 1397 (1985).

APPENDICES

Appendix 1:    In re Adoption of Buehl, 87 Wn.2d 649, 555 P.2d 1334 (1976) (en banc).

Appendix 2:    In re the Estate of Willis, No. SWI-PRO-6-90-059, Findings of Fact, Conclusions of Law and Order
                       for Probate (Swinomish Tribal Court, Nov. 13, 1990). Also attached is the opinion of the Washington
                       Court of Appeals dismissing an appeal from a superior court order and giving the tribal court order full
                       effect.

Appendix 3:    South Dakota Law 1-1-25
 

FOOTNOTES

1. P.S. Deloria & Robert Laurence, Negotiating Tribal-State Full Faith and Credit Agreement: The Topology of the Negotiation and the Merits of the Question, 28 GEORGIA L. REV. 365, 374 (1994) (hereafter Deloria & Laurence).

2. Gordon K. Wright, Recognition of Tribal Decisions in State Courts, 37 STAN. L REV. 1397, 1408 (1985).

3. Id. at 1400-01.

4. For an anecdotal discussion of C.F.R. courts in their early years, see W. HAGEN, INDIAN POLICE AND JUDGES 104-05 (1966).

5. With respect to criminal offenses, C.F.R. courts apply the "Code of Indian Tribal Offenses," which is set out at 25 C.F.R. §§ 1138-11.98ME (1993).

       With respect to civil actions, C.F.R. courts are required to apply the following law:

        In all civil cases the Court of Indian Offenses shall apply any laws of the United States that may be applicable, any authorized regulations of the Interior Department, and any ordinances or customs of the tribe, not prohibited by such Federal laws.

* * * *

        Any matters that are not covered by the traditional customs and usages of the tribe, or by applicable Federal laws and regulations, shall be decided by the Court of Indian Offenses according to the laws of the State in which the matter in dispute may lie.

25 C.F.R. § 11.23(a), (c) (1993).

6. FELIX S. COHEN's HANDBOOK OF FEDERAL INDIAN LAW 333 (Renard Strickland ed., 2d ed. Michie 1982).

7. See Michael Taylor, Modern Practice in the Indian Courts, 10 U. PUGET SOUND L. REV. 231, 270 (1987).

8. E.g., In re Estate of Willis, No. 28520-3-I, unpublished order at 6 (Wa. App., Sept. 25, 1990) (attached as Appendix 2); see also Taylor, supra note 7, at 270.

9. Ralph W. Johnson, Enforcement of Federal, State and Indian Court Judgments 3 (1994) (unpublished manuscript, on file with the author) (hereafter Johnson).

10. See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). See also Wright, supra note 2, at 1410.

11. Wright, supra note 2, at 1411.

12. Johnson, supra note 9, at 3.

13. Wright, supra note 2, at 1411.

14. Id.

15. U.S. CONST. art. IV, § 1, cl. 1.

16. 18 U.S.C. § 1738.

17. Pink v. AAA Highway Express, Inc., 314 U.S. 201, 210 (1941).

18. Wright, supra note 2, at 1413.

19. See Jackson, FuLl Faith and Credit--The Lawyer's Clause of the Constitution, 45 Colum. L. Rev. 1, 8 (1945).

20. See Johnson, supra note 9, at 3.

21. Johnson, supra note 9, at 3.

22. Cf. Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895 (1982) (the phrase "Territories and Possessions" within 28 U.S.C. § 1738, which requires that judicial proceedings be given same full faith and credit in every court within the United States and its territories and possessions, is broad enough to include Indian tribes at least as they are presently constituted under the laws of the United States) and In re Adoption of Buehl, 87 Wn.2d 649, 555 P.2d 1334 (1976 (en banc) ("Tribal court decrees are entitled to full faith and credit to the same extent as decrees of sister states.") with In re Sengstock, 165 Wis. 2d 86, 477 N.W.2d 310 (1991) (Indian tribe is neither a state nor a foreign country within meaning of provisions of Uniform Child Custody Jurisdiction Act).

23. 471 U.S. 845 (1985).

24. Id. at 856.

25. Johnson, supra note 9, at 4.

26. E.g., N.D. CENT. CODE § 27-01-09 ("Recognition and enforcement of tribal court judgments, decrees, and orders under this section is conditioned upon recognition and enforcement of state court judgments, decrees, and orders by the tribal court of the [Tribal and tribal law enforcement agencies under the same limitations provided by this section for recognition and enforcement of tribal court judgments, decrees, and orders by state courts."); WYO. STAT. § 5-1-111(a) ("The judicial records, orders and judgments of the courts of the [Tribes] shall have the same full faith and credit in the courts of this state as do the judicial records, orders and judgments of any other governmental entity, unless at least one (1) of the following conditions is shown not to be met: ... (iv) The court certifies that it grants full faith and credit to the judicial records, orders and judgments of the courts of this state."). See also 12 Okl. St. Ann. § 728 ("In issuing any such standard [for recognition of judgments of the court of a federally recognized Indian tribe or a Court of Indian Offenses] the Supreme Court of the State of Oklahoma may extend such recognition in whole or in part to such type or types of judgments of the tribal courts as it deems appropriate where tribal courts agree to grant reciprocity of judgments of the courts of the State of Oklahoma in such tribal courts.").

27. Deloria & Laurence, supra note 1, at 378-79.

28. 1986 S.D. LAWS 1-125 (attached as Appendix 3).

29. In Re Adoption of Buehl, 87 Wn.2d 649, 555 P.2d 1334 (1976) (en banc) (attached as Appendix 1).

30. Johnson, supra note 9, at 5.

31. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).

32. F. COHEN, supra note 6, at 230, 247.

33. Most tribes had only patchwork recollections of their traditional tribal systems and hence found it difficult to write constitutions adapted to their particular needs. As a result, tribes relied initially on BIA models for their tribal courts. NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION, INDIAN COURTS AND THE FUTURE 42-43 (1978) (hereafter cited as NAICJA).

34. Wright, supra note 2, at 1402.

35. Id.

36. E.g., Decoteau v. Ives, Jr., No. POR-CI-5/91-76, 21 Indian L. Rep. 6043 (Port Gam. S'Kal. Ct. App., Aug. 3, 1992) ("In analyzing this issue we recognize that precedents from other courts are not binding upon us, but can be used as a guide. We look first to decisions from other tribal courts, then to federal cases, and thereafter to state decisions. This is particularly appropriate in cases of first impression before this court.").

37. Taylor, supra note 7, at 256.

38. Criminal cases take up a major portion of many tribal courts' dockets. NAICJA, supra note 33, at 47.

39. NAICJA, supra note 33, at 47.

40. E.g., Mustang Fuel Corp. v. Cheyenne-Arapaho Tax Comm'n, No. CNA-SC-91-02, 21 Indian L. Rep. 6058 (Chey.-Arap. Sup. Ct., Jan. 3, 1994) (affirming holding that the Cheyenne-Arapaho Tribes retain their inherent authority to tax the extraction of mineral resources on allotted Indian trust lands by non-Indian companies).

41. Deloria & Laurence, supra note 1, at 374.

42. E.g., N.D. CENT. CODE § 27-01-09 (requiring recognition of tribal court judgments only in cases "the dissolution of marriage, the distribution of property upon divorce, child custody, adoption, an adult abuse protection order, or an adjudication of the delinquency, dependency, or neglect of Indian children").

43. E.g., Begay v. Miller, 70 Ariz. 380, 222 P.2d 624 (1950) (upholding a divorce decree granted by tribe to tribal members and denying the state court the jurisdiction to enter a contrary decree); Brown v. Babbitt Ford, Inc., 117 Ariz. 192, 571 P.2d 689 (Ariz. Ct. App. 1977) (affirming the principle of comity with respect to tribal courts in a repossession action); Jim v. CIT Fin. Serv. Corp., 87 N.M. 362, 533 P.2d 751 (1975) (granting full faith and credit to tribal law in a repossession action); In re Red Fox, 23 Or. App. 393, 542 P.2d 918 (1975) (granting comity to tribal court decision in a divorce action); In re Adoption of Buehl, 87 Wash. 2d 649, 555 P.2d 1334 (1976) (granting full faith and credit to tribal court child custody decision).

44. NAICJA, supra note 33, at 50-51.

45. Id.

46. Compare N.D. CENT. CODE § 27-01-09 (state court to recognize tribal court judgments only "in any case involving the dissolution of marriage, the distribution of property upon divorce, child custody, adoption, an adult abuse protection order, or an adjudication of the delinquency, dependency, or neglect of Indian children") with S.D. LAWS § 1-1-25(2)(a) (state court may recognize tribal court judgment in "any child custody or domestic relations" case if judgment meets statutory conditions).

47. Jurisdictional questions often leave the tribal court with no reason to adjudicate disputes. Wright, supra note 2, at 1407.

48. The heart of ICRA is codified at 25 U.S.C. § 1302.

49. See discussion at page 7.

50. Taylor, supra note 7, at 274-75.

51. Id. at 275.

52. No. SUQ-FCR-2/90-3, 21 Indian L. Rep. 6090 (Suq. Ct. App., Sept. 18, 1992).

53. Wright, supra note 2, at 1415 n.102 (citations omitted).

54. N.D. CENT. CODE § 27-01-09 (emphasis added).

55. Johnson, supra note 9, at 1.

56. Taylor, supra note 7, at 241.

57. For example, one tribal code specifies that pleadings filed by an attorney not licensed to practice before the tribal court are void:

If the defendant fails to answer the complaint within 20 days or otherwise defend, plaintiff is entitled to default judgment upon motion. A natural person may appear pro se (represent self), but all other entities must appear by a licensed attorney. Attorney herein means state licensed attorney or advocate. An appearance or answer by an attorney who is not admitted under Title 2 and licensed under Title 18 is void (non-appearance). When an attorney is not licensed the opposing party shall be entitled to dismissal or default upon a party's motion, or court's motion.
Turtle Mountain Tribal Code § 2.0504(1) (emphasis added).

58. Taylor, supra note 7, at 273. Information Indian Law Resources