NATIVE AMERICAN CASES

CS 210 Native American Cases

11/87 Revised 05/03/16 Training Completed 08/11/14

AT-98-21, Child Support Handbook; 5 CFR 581.101, 45 CFR 303.11, 309.01; 18 U.S.C. § 1151, 28 U.S.C. § 1738B, 42 U.S.C. § 659

 

 

Introduction

 

“Within much of tribal territory, the authority of state and local governments is limited or nonexistent. The Constitution, numerous court decisions, and federal law clearly reserve to tribes important powers of self-government, including the authority to make and enforce laws, to adjudicate civil and criminal disputes including domestic relations cases, to tax, and to license. States have been limited in their ability to provide child support services on tribal lands, and sometimes American Indian and Native American families have had difficulty obtaining services from state child support programs. Cooperative agreements between tribes and states have helped bring child support services to increasing numbers of American Indian families.” (“Chapter 7:  Working Across Borders.”  Child Support Handbook.  Office of Child Support Enforcement.  Administration for Children & Families.)    

 

Certain arrangements for child support services on tribal lands exist and may involve specific tribal agreements where jurisdiction of the state or county is recognized with the sole purpose of child support enforcement.  In these situations, tribes will allow IV-D agencies to extend state IV-D procedures to reservations without conforming to federal requirements.  Federal regulations still mandate that state IV-D offices offer and provide child support services to all Native Americans, regardless of whether they live on or off of the reservation.

 

Direct IV-D federal funding for child support enforcement programs is available to tribes that meet the specified requirements. 

 

 

Definition

 

Reservation – The Bureau of Indian Affairs (BIA) defines a reservation as, “An area of land reserved for a tribe or tribes under treaty or other agreement with the United States, executive order, or federal statute or administrative action as permanent tribal homelands, and where the federal government holds title to the land in trust on behalf of the tribe.”

 

 

Utah Tribes

 

In the State of Utah, there are ten different reservations and five tribes. All of the tribes are considered to be “major” tribes.  The tribes are as follows:

 

1.                   Goshute - The Goshute Tribe has two different bands.  They are located in Tooele and Juab County and part of Nevada.  The two bands of the Goshute tribe are:

a.                   the Confederated Tribes of the Goshute; and,

b.                  the Skull Valley Band of Goshute.

 

2.                   Paiute The Paiute Tribe has five different bands.  They are located in Millard, Beaver, Piute, Iron and Washington County.  The five bands of the Paiute tribe are:

a.                   the Shivwits Band;

b.                  the Indian Peaks Band;

c.                   the Kanosh Band;

d.                  the Koosharem Band; and,

e.                  the Cedar Band.

 

3.                   Navajo – The Navajo reservations is located in Kane and San Juan County and part of Arizona and New Mexico.

 

4.                   Northwest Band of Shoshone NationThe Shoshone reservation is located in Box Elder County.

 

5.                   UteThe Ute Indian Tribe of the Uintah and Ouray Reservation is located in the eastern part of Utah in Duchesne, Uintah, Carbon and Grand counties.

 

6.                   White Mesa UteThe White Mesa Ute reservation is located in San Juan County and is part of the larger Ute Mountain Ute Tribe of Tawoac, Colorado.

 

NOTE:  The White Mesa Ute tribe is a separate tribe and reservation from the Ute tribe.

Refer to the map below for the locations of each tribe.

 

 

Pre-Order/Modification Cases

 

When working a pre-order or modification case and the NCP/alleged father or the custodial parent (CP) lives or works on a Native American reservation you must first determine if the tribe is a IV-D or a Non-IV-D tribe.

 

1.                   IV-D Tribe – If the NCP/alleged father or the custodial parent (CP) resides on a reservation of a tribe receiving IV-D funding and operating a child support enforcement program, you may file a UIFSA transmittal directly with the tribe.  For example, if the NCP/alleged father resides on the Navajo Nation you may send an intergovernmental transmittal directly to the Navajo Nation. 

 

2.                   Non-IV-D Tribe – Generally, if the NCP/alleged father or the (CP) resides on a reservation that is not participating in a federally funded child support program, an action to establish or modify a support order must be initiated in the Tribal Courts (located on the reservation), unless the participants stipulate otherwise.  To be subject to the exclusive jurisdiction of a tribe, an NCP/alleged father:

a.                   Must be an enrolled member of that tribe, e.g., the individual living on the White Mesa Ute reservation must be a member of the White Mesa Ute tribe; or,

b.                  The conduct at issue occurred on the reservation, e.g., the child was conceived on the reservation.

 

If an NCP/alleged father’s tribal membership (or lack thereof) is not clear, send the Tribal Membership Letter to the chairman of the tribe where you believe the NCP/alleged father is enrolled/associated.  The letter asks if the NCP/alleged father is an enrolled member, and if so, the member number.

 

If you have contacted the Non-IV-D tribe’s administrative office, court, social service, or child support agency and the tribe will not reciprocate establish or modification efforts, document your efforts in a detailed narrative on the case noting the names and titles of the people you spoke with.  Continue to monitor the case for new information and review the case at a later date for any changes in the NCP’s circumstances.  If the qualifies for closure based off of the federal closure criteria, you may review the case for closure. 

 

If the NCP/alleged father does not reside on the reservation proceed with the case in the same manner as any other case. 

 

EXCEPTION:  Because most tribal orders are not based on statutory guidelines, they are not subject to these procedures.  Therefore, if the order is a tribal order, you must determine where the tribe issuing the order is located.  If the tribe is located:

 

1.                   In Utah – Determine if the order was issued by:

a.                   The Navajo Nation – Make an intergovernmental referral to the Navajo Nation and request a modification of the order. 

b.                  One of the other tribes – The order cannot be modified.  Continue to enforce the order as it is. 

 

2.                   In another state – Check the matrix in CS 211 before making an intergovernmental referral to the state in which the tribe is located to request a modification of the order. 

 

 

Post-Order Cases and Enforcement

 

A tribal court order has the same effect as any other support order, administrative or judicial, issued from another state or country.  If the NCP is Native American and there is a district court, tribal court, or administrative order requiring him/her to pay support, you may enforce that order to the fullest extent possible.  To enforce an existing support order through an administrative enforcement remedy such as income withholding, lien-levy, or a similar administrative enforcement action, you must determine whether the income and/or asset is located on or off of the reservation and you must determine whether the tribe is IV-D or Non-IV-D.

 

1.                   On the reservationDo not directly enforce upon or attach to any asset located on the reservation, including any income source, personal property, or real property.  If the income and/or asset is located on the reservation and the tribe is a:

a.                   IV-D tribe (e.g., the Navajo Nation) – File a UIFSA transmittal directly with that tribe (IRG); or,

b.                  Non-IV-D tribe (within or outside of Utah) – If you need assistance from a tribe that does not receive federal funding for a IV-D program contact the tribe’s administrative office, court, social service, or child support agency to obtain information on that tribe’s legal and procedural requirements.  The address and phone number for all tribes located in the United Sates can be found on the internet on the Tribes-by-State Map Index. 

 

If you have contacted the Non-IV-D tribe’s administrative office, court, social service, or child support agency and verified that the tribe will not honor an income withholding or reciprocate enforcement actions, document your efforts in a detailed narrative on the case noting the names and titles of the people you spoke with.  Continue to monitor the case for new information and review the case at a later date for any changes in the NCP’s circumstances.  If the case qualifies for closure based off of the federal closure criteria, you may review the case for closure. 

 

2.                   Off the reservation – If the NCP works off the reservation enforce the case as you would any other case.  Use income withholding whenever possible to enforce payment of child support.  If the NCP has assets that are located off the reservation, you may take enforcement action against those assets. 

 

EXCEPTION:  A Notice to Withhold (NTW) may be sent on any federal employee, even if the individual works on the reservation or is a tribal member.  Section 459 of the Social Security Act and the Office of Personnel Management regulations at 5 CFR 581.101, give the Federal government the authority to withhold wages from any federal employee for the payment of child support, regardless of American Indian/Alaska Native tribal membership, residency, or employment on a reservation.  This applies to all federal employees on tribal reservations regardless of whether they are employed with the Indian Health Service, Bureau of Indian Affairs, United States Fish and Wildlife Services, Housing and Urban Development, Department of Labor, or any other federal agency. 

 

 

Service of Process

 

Cases involving a Native American participant(s) may require different procedures.  If service of process is necessary determine if the participant lives or works on or off of the reservation and if the tribe is a IV-D or a Non-IV-D tribe.

 

1.                   On the reservation – If the individual lives or works on a reservation that is a:

a.                   IV-D tribe – Do not attempt to serve the individual.  Instead, send a UIFSA referral packet to that IV-D tribe.  For a complete list of IV-D tribes, refer to the IRG; or,

b.                  Non-IV-D tribe – If you need assistance from a tribe that does not receive federal funding for a IV-D program contact the tribe’s administrative office, court, social service, or child support agency, if known, to obtain information on that tribe’s legal and procedural requirements.  The address and phone number for all tribes located in the United States can be found on the internet on the Tribes-by-State Map Index. 

 

If you have contacted the Non-IV-D tribe’s administrative office, court, social service, or child support agency and you are unable to serve the Native American participant and/or petition the tribal court, document your efforts in a detailed narrative on the case noting the names and titles of the individuals you spoke with.  Continue to monitor the case for new information and review the case at a later date for any changes in the NCP’s circumstances.  If the case qualifies for closure based off of the federal closure criteria, you may review the case for closure. 

 

If you need to serve a participant who resides on a reservation but works off of the reservation, you may attempt to serve the individual as long as s/he has “minimal contacts” with the state.  If/when this situation arises, review the case with the assigned attorney. 

 

NOTE:  A Native American respondent (NCP or CP) who lives on the reservation may be served in a two-party administrative action by certified mail, IF they have a P.O. Box that is off the reservation.

 

2.                   Off the reservation – If the individual does not live or work on the reservation, you may attempt to serve that individual using the same methods and procedures as any other case.

 

NOTE:  If an order was improperly taken against a Native American NCP, set the order aside.  Do not attempt to enforce the order. 

 

 

Full Faith and Credit for Child Support Orders (FFCCSOA)

 

28 U.S.C § 1738B(a)(9):

“The term “State” means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the territories and possessions of the United States, and Indian country (as defined in section 1151 of title 18).”

 

Indian nations have not been required to adopt UIFSA.  However, Indian nations are required to adopt the FFCCSOA.  28 U.S.C. § 1738B(d) Continuing Jurisdiction states:

A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child’s State or the residence of any individual contestant unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order.”

 

As long as Utah had jurisdiction when a case was opened, and at least the child or one of the parties is currently residing in Utah, continuing, exclusive jurisdiction over the case will remain with the State of Utah.  If/when this situation arises, consult with the attorney assigned to the case.

 

Tax Intercept

 

If the NCP lives and/or works on a reservation certify the debt(s) for federal tax refund offset and refer the debt(s) for state tax refund offset as long as there is:

 

1.                   Not a court, tribal, or administrative order with specific language prohibiting tax certification;

 

2.                   A past-due support obligation that has accrued under a court order, tribal order, or administrative order; and,

 

3.                   The case meets all of the certification criteria. 

 

ORSIS will automatically certify the debt(s) for federal tax refund offset and state tax refund offset, as long as the case is coded correctly on ORSIS. 

 

 

Out of State Native American Non-custodial Parents

 

If the NCP/alleged father resides on a reservation located outside of Utah, you may file a UIFSA petition with either:

 

1.                   The state the reservation is located in; or,

 

NOTE:  If the reservation is located in another state, check the IRG to determine if that state has a reciprocity agreement with the tribe.  If there is an agreement, you may send a UIFSA transmittal to that state. 

 

2.                   The reservation directly; provided the tribe has an established IV-D Child Support Services Program and will directly accept a UIFSA transmittal.

 

If you are unable to file a UIFSA petition with either the state or the reservation leave the case open for enforcement and continue to monitor the case for new information.  Review the case at a later date for any changes in the NCP’s circumstances.  If the qualifies for closure based off of the federal closure criteria, you may review the case for closure.