as: 190 Ariz. 208, 946 P.2d 459)
Court of Arizona,
of Arizona, Plaintiff-Appellee.
ZAMAN (Tahirkhaili) Defendant-Appellant.
act of Congress, state court jurisdiction over litigation involving Indians
and non-Indians for transactions arising on reservation depends on "infringement
test" of whether state action infringes on right of reservation
Indians to make their own laws and be ruled by
is no comprehensive federal regulatory scheme governing child support, paternity,
and custody, outside of adoption and foster care context, that
would indicate intent by Congress to oust state courts of
subject matter jurisdiction in litigation involving Indians and non-Indians for
transactions arising on reservation.
court jurisdiction in action by Indian plaintiff against non-Indian defendant
does not infringe upon rights of Indians to make their
own laws and to be ruled by them; so long
as Indian party selects state forum, there is nothing for
infringement test to protect against.
court had subject matter jurisdiction over State's action on behalf
of Indian mother against non-Indian father, regarding paternity, custody, and
of child; Indian selected forum, and there was no countervailing
tribal interest in helping non-Indian father escape his legal obligations
to Indian mother and nonmember child eligible for tribe membership.
authority of state courts in matters involving Indian party depends
upon Indian party's interest, not interests of tribe as whole,
under infringement test of whether state action infringes on right
of reservation Indians to make their own laws and be
ruled by them.
Child Welfare Act (ICWA) did not bar state court jurisdiction
over State's suit on behalf on Indian mother against non-Indian
father regarding paternity and custody of child, as proceeding would
not terminate parental rights. Indian Child Welfare Act of 1978,
101, 25 U.S.C.A. §§ 1903(1),
sovereign authority of tribes does not include right to exercise
jurisdiction over non-Indian defendants.
courts do not have civil jurisdiction over nonmembers unless one
of two exceptions applies: tribal courts may exercise jurisdiction over
non-Indians who engage in consensual business relationships with tribes, and
tribal courts have jurisdiction over conduct on fee lands within
reservation if conduct
threatens or has some direct effect on political integrity, economic
security, or health or welfare of tribe.
tribes retain their inherent power to punish tribal offenders, to
determine tribal membership, to regulate domestic relations among members, and
to prescribe rules of inheritance for members, but tribe's inherent
power does not reach beyond what is necessary to protect
tribal self-government or to control internal relations.
court should not refrain from exercising certain state court jurisdiction,
under doctrine of judicial restraint, in favor of uncertain tribal
Stephen G. Udall, Apache County Atty. by Karl C. Eppich,
Deputy County Atty., St. Johns, for State.
Trebon & Fine P.C. by John J. Trebon, Flagstaff, for
Akhtar Zaman (Tahirkhaili).
The issue before us is whether a state court has
subject matter jurisdiction in an action brought by the State
of Arizona, at the request of a member of an
Indian tribe, against a non-member, non-Indian father, to determine paternity,
custody, and child support obligations involving a child eligible for
tribal membership. We hold that the state court has subject
Barbara Wilson is an enrolled member of the Navajo Tribe.
Akhtar Zaman is neither a member nor an Indian. Both
parties lived and worked on the Navajo Reservation.
Wilson and Zaman were involved in a romantic relationship from
1982 until 1987. Sahira Zaman was born on October 19,
1987, and, though eligible for membership in the Navajo Tribe,
is not a member.
At Wilson's request, the State of Arizona filed an action
in superior court to have Zaman adjudged Sahira's father, to
order him to pay child support, and to grant Wilson
[FN1] Zaman moved to dismiss for lack of subject matter
and personal jurisdiction, and improper service of process. The court
denied the motion. Several years later, Zaman filed a motion
for summary judgment on the same issues. The court again
denied the motion.
The State brought this action pursuant to 42 U.S.C. § 654
(1994), A.R.S. §§ 12-841
to -852 (1992)(current version at A.R.S. §§ 25-801
to -815 (Supp.1996)), and A.R.S. §§ 12-2451
to -2462 (1994)(current version at A.R.S. §§ 25-501
to -517 (Supp.1996)). The State is authorized to bring actions
to establish paternity and compel child support. The State "shall
not seek or defend any ancillary matters such as custody
or visitation." A.R.S. § 12-843(B)(1992)
(current version at A.R.S. § 25-803(B)(Supp.1996));
2456(C)(1994)(current version at A.R.S. § 25-509(C)
(Supp.1996)). Zaman did not challenge the State's involvement in the
custody and visitation portions of this action.
The court found that Zaman was Sahira's father, that he
owed $29,792 in back child support, and set child support
at $600 per month. It granted Wilson custody
and established guidelines for visitation.
The court of appeals reversed, and held that the superior
court lacked subject matter jurisdiction because "state action [would] infring[e]
on the right of reservation Indians to make their own
laws and be ruled by them." State
187 Ariz. 81, 83-84, 927 P.2d 347, 349-50 (App.1996). Believing
that an important issue of law had been decided incorrectly,
we granted review. Rule 23(c)(4), Ariz. R. Civ.App. P.
The State of Arizona, a non-Indian party, brought this action
against Zaman, also a non-Indian. Jurisdiction over an action between
two non-Indian parties presumptively lies in state court.
On the other hand, Wilson, the real party in interest,
is a member of the Navajo Tribe. Sahira, the child
who is at the heart of this matter, although a
non-member, is eligible for membership in the Navajo Tribe. The
relationships arose on the Navajo reservation.
The infringement test
an act of Congress, state court jurisdiction over litigation involving
Indians and non-Indians for transactions arising on the reservation depends
on "whether the state action infringe[s] on the right of reservation
Indians to make their own laws and be ruled by them." Fisher
v. District Court,
424 U.S. 382, 386, 96 S.Ct. 943, 946, 47 L.Ed.2d 106 (1976)
(quoting Williams v.
Lee, 358 U.S. 217,
220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959)). Zaman has not
argued that federal preemption acts as a barrier to state court jurisdiction
over non-Indians, and we have found no authority to support such a proposition.
[FN2] Thus, state court jurisdiction exists unless the action would
unduly infringe on Indian self-governance.
Preemption as a bar to state court jurisdiction was neither
raised in the Petition for Review nor in the Response.
The issue was not raised in the briefs in the
court of appeals. Rather, Zaman acknowledged in his opening brief
that neither 25 U.S.C. § 1911
(1994) nor 25 C.F.R. §§ 11.22
and 11.30 (1988) resulted in federal preemption. There is no
comprehensive regulatory scheme governing child support, paternity, and custody, outside
of the adoption and foster care context, that would indicate
an intent by Congress to oust the state court of
jurisdiction over these issues. If Zaman intended to raise preemption
as a barrier to state court jurisdiction, we reject that
infringement test originated in Williams
v. Lee from an attempt
by a non-Indian to sue Indians in state court for on-reservation conduct.
The right of the Indian defendants to be governed by their
prevented the non-Indian plaintiff from suing them in state court. In
the four decades following Williams,
only in actions "by non-Indians against Indians or ... between Indians
... [has state court jurisdiction been found to] intrude[ ] impermissibly
on tribal self-governance." Three
Affiliated Tribes v. Wold Eng'g
), 467 U.S. 138, 148, 104 S.Ct. 2267, 2274, 81 L.Ed.2d 113 (1984). The
application of the infringement test in the adjudicatory setting has protected
from nonconsensual state court jurisdiction. See,
e.g., Williams, 358
U.S. at 219-20, 79 S.Ct. at 270-71; Fisher,
424 U.S. at 386, 96 S.Ct. at 946.
Zaman's challenge to state court jurisdiction presents us with the
obverse of the ordinary claim structure. Zaman, a non-Indian, seeks
to use a protection afforded Indians to defeat the claim
of an Indian who chooses the state forum. This attempt
to clothe oneself in the immunity afforded another has already
been rejected by the Supreme Court. Wold
467 U.S. at 148, 104 S.Ct. at 2274.
The Indian interests which the infringement test seeks to protect
are not present when an Indian plaintiff brings an action
against a non-Indian defendant in state court. So long as
the Indian party selects the state forum, there is nothing
for the infringement test to protect against. Thus, the Supreme
Court "repeatedly has approved the exercise of jurisdiction by state
courts over claims by Indians against non-Indians, even when thoseclaims
[arise] in Indian country." Id.
The infringement test protects Indians. It is not an offensive
tool to be used against them. Thus, the infringement test
will not preclude state court jurisdiction where an Indian plaintiff
brings an action against a non-Indian defendant. See
at 148-49, 104 S.Ct. at 2274.
Zaman argues that Wold
should be limited to cases in which the tribe itself
brings the action. But Wold
is not so limited: "self-government is not impeded when a
State allows an Indian
to enter its courts on equal terms with other persons
to seek relief against a non-Indian concerning a claim arising
in Indian country." Id.
(emphasis added). We do not read the Court's acknowledgment that
state court jurisdiction is "particularly compatible with tribal autonomy" when
the tribe itself is the plaintiff as a limitation on
the Court's general holding. Id.
at 149, 104 S.Ct. at 2274. Nor has Zaman *211
cited any authority for his contention. Our own research revealed
only one case involving a non-Indian's challenge, and it concluded
that state court jurisdiction existed. Brooks
801 F.2d 1237, 1239-40 (10th Cir.1986).
also argues that the infringement test seeks to protect the collective
interests of the tribe, not the interests of individual tribal members.
Thus, he argues, where the tribe itself is the plaintiff,
there would be no infringement of tribal interests, but where a tribal
member is the plaintiff,
state court jurisdiction would not exist if the tribe had a sufficient
interest in the litigation. We disagree.
We are unaware of any Supreme Court case that has
considered the collective interests of the tribe, in contrast to
an Indian's rights, in determining the adjudicatory authority of state
courts under the infringement test. "Tribal interests" have been used
as a backdrop for the interpretation of federal law in
preemption cases, Three
Affiliated Tribes v. Wold Eng'g
), 476 U.S. 877, 884, 106 S.Ct. 2305, 2310, 90
L.Ed.2d 881 (1986), and in regulatory actions concerning tribal enterprises
and government programs, White
Mountain Apache Tribe v. Bracker,
448 U.S. 136, 145, 100 S.Ct. 2578, 2584, 65 L.Ed.2d
665 (1980). But in actions involving the rights and interests
of individual Indians, the relevant inquiry is the infringement of
be sure, when Congress has legislated on Indian matters, it
has, most often, dealt with the tribes as collective entities.
But those entities are, after all, composed of individual Indians,
and the legislation confers individual rights. This Court has therefore
held that "the question has always been whether the state
action infringed on the right of reservation
to make their own laws and be ruled by them."
v. State Tax Comm'n,
411 U.S. 164, 181, 93 S.Ct. 1257, 1267, 36 L.Ed.2d
129 (1973)(quoting Williams,
358 U.S. at 220, 79 S.Ct. at 271). The adjudicatory
authority of state courts in matters involving an Indian party
depends upon the Indian party's interest, not on the interests
of the tribe as a whole.
may, of course, enact legislation to protect the collective interests
of the tribe. It has done so with the Indian Child Welfare
Act (ICWA). 25 U.S.C. §§ 1901-1963 (1994). "[T]he
rights of the Indian child as an Indian and the rights of the Indian community
and tribe in retaining its children in its society" caused Congress
to provide exclusive tribal court jurisdiction over certain child welfare
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 37, 109 S.Ct. 1597, 1602, 104 L.Ed.2d 29 (1989)(quoting H.R.Rep.
No. 95-1386, at 23 (1978), reprinted
in 1978 U.S.C.C.A.N.
7530, 7546). But Congress limited such actions to proceedings
resulting in the termination of the Indian parent's rights. 25 U.S.C.
§§ 1903, 1911. Child placement proceedings
in divorce actions in which custody is awarded to one of the parents were
explicitly removed from the reach of the ICWA. 25 U.S.C. § 1903(1).
The ICWA was enacted to prevent the "wholesale removal" of
Indian children from their families and their tribes through adoption
and foster care placement, usually with placement in non-Indian homes.
490 U.S. at 32-37, 109 S.Ct. at 1599-1602. But the
child custody proceeding at issue here does not raise the
same concerns. There is no threat that Sahira will not
be exposed to her Indian heritage. Thus, although the ICWA
is inapplicable, even its rationale would not support Zaman's contention.
State court jurisdiction over actions brought by Indians against non-Indians
does not infringe upon the rights of Indians to make
their own laws and to be ruled by them. Wold
467 U.S. at 148, 104 S.Ct. at 2274. But Indian
rights would be infringed if we permitted a non-Indian to
challenge an Indian's choice of the state forum. Members of
tribes are citizens of the United States and of the
state in which they reside and thus have the right
to bring actions in state court. McClanahan,
411 U.S. at 172-73, 93 S.Ct. at 1262. This right
would be substantially hindered if non-Indians could prevent Indians from
seeking redress in state court.
Zaman argues that Fisher
v. District Court,
424 U.S. 382, 390-91, 96 S.Ct. 943, 948, 47 L.Ed.2d
106 (1976), permits the denial of an Indian's right to
bring an action in state court. But Fisher
merely limits a tribal member's right to bring an action
in state court when the action is against another tribal
member. That part of Fisher
upon which Zaman relies does nothing more than acknowledge that
state courts, absent a governing act of Congress, are generally
without jurisdiction over tribal member defendants for on-reservation activities. If
an Indian's right to bring an action in state court
is to be meaningful, we must respect the Indian plaintiff's
choice of forum when no Indian is subjected to state
court jurisdiction without consent.
Zaman is a non-Indian. He is not entitled to the
protections afforded Indian defendants. Nor can we perceive of any
threat to Indian self-governance by requiring a non-Indian to answer
the complaint of an Indian in state court. The state
court had subject matter jurisdiction over this action.
Exclusive or concurrent jurisdiction
Zaman argues that if the state court has jurisdiction, there
is concurrent jurisdiction in the Navajo courts, and the state
court should have exercised judicial restraint. But this argument assumes
that the Navajo courts have jurisdiction, an uncertain proposition at
Zaman contends that tribal courts have civil jurisdiction over the
on-reservation activities of non-Indians "unless affirmatively limited by a specific
treaty provision or federal statute." Iowa
Mut. Ins. Co. v. LaPlante,
480 U.S. 9, 18, 107 S.Ct. 971, 977, 94 L.Ed.2d
10 (1987). A unanimous Supreme Court, however, recently rejected the
argument that LaPlante
provides tribes with broad jurisdiction over non-Indians for on-reservation conduct.
v. A-1 Contractors,
--- U.S. ----, ----, 117 S.Ct. 1404, 1412-13, 137 L.Ed.2d
661 (1997). LaPlante
describes an exhaustion rule. Id.
at ----, 117 S.Ct. at 1413. It does not purport
to establish tribal court adjudicatory authority. Montana
v. United States,
450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981),
remains as the "pathmarking case concerning tribal civil authority over
520 U.S. at ----, 117 S.Ct. at 1409.
extended into the civil context the general principle expressed in Oliphant
v. Suquamish Indian Tribe,
435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), that the inherent
sovereign authority of tribes does not include the right to exercise jurisdiction
over non-Indian defendants. Montana,
450 U.S. at 565, 101 S.Ct. at 1258. "[T]he Indian tribes have
lost any 'right of governing every person within their limits except themselves.'
(quoting Fletcher v.
Peck, 6 Cranch 87,
147, 3 L.Ed. 162 (1810) (Johnson, J., concurring)). Tribal
courts do not have civil jurisdiction over non-members unless one of two
exceptions applies. Montana,
450 U.S. at 565, 101 S.Ct. at 1258. First, tribal courts may
exercise jurisdiction over non-Indians who engage in consensual business
relationships with tribes. Strate,
520 U.S. at ----, 117 S.Ct. at 1415; see
also Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 141, 102 S.Ct. 894, 903, 71 L.Ed.2d 21 (1982) (affirming
a tribe's power to tax non-Indians who conduct business on the reservation).
Second, tribal courts have jurisdiction over conduct on fee
lands within the reservation if the conduct "threatens or has some
direct effect on the political integrity, the economic security, or the
health or welfare of the tribe." Montana,
450 U.S. at 566, 101 S.Ct. at 1258.
welfare actions do not involve consensual business relations and therefore
do not fall within the first Montana
exception. Child welfare actions may affect the welfare of
the tribe and thus arguably fall within the second Montana
exception. But Strate
warned that this second exception should not be interpreted so that "the
exception ... severely shrink[s] the rule." Strate,
520 U.S. at ----, 117 S.Ct. at 1415. "Read in isolation, the
rule's second exception can be misperceived. Key to its proper
application, however, is the Court's preface: 'Indian tribes retain
their inherent power [to punish tribal offenders,] to determine tribal
membership, to regulate domestic relations among
members, and to prescribe rules of inheritance for members.... But
[a tribe's **464
inherent power does not reach] beyond what is necessary to protect tribal
self-government or to control internal relations.' " Id.
at ----, 117 S.Ct. at 1416 (alteration in original)(quoting Montana,
450 U.S. at 564, 101 S.Ct. at 1257-58) (emphasis added).
We need not reach this important
issue here. Having determined that the state court does have
jurisdiction, the remaining issue is one of judicial restraint. Even
if such a doctrine applied, we believe it would be unwise to hold that
the state court should refrain from exercising certain state court jurisdiction
in favor of uncertain tribal court jurisdiction.
Wilson, as Sahira's mother, has a right to bring this
action in state court. There is no countervailing tribal interest
in helping Zaman, a non-Indian,
escape his legal obligations to Wilson, a member of the
Navajo Tribe, and Sahira, a child eligible for membership in
the Tribe. Tribal court jurisdiction exists for the protection and
benefit of tribal members. It would stand federal Indian law
on its head to allow a non-Indian to exploit a
tribal immunity to the disadvantage of a tribal member and
her child. The state court properly exercised subject matter jurisdiction.
We vacate the opinion of the court of appeals and
remand to the court of appeals for resolution of the
issues properly raised on appeal but not decided.
ZLAKET, C.J., JONES, V.C.J., and FELDMAN, J., and ROBERT D.
MYERS, Judge, concur.
MOELLER, J., did not participate in the determination of this
matter. ROBERT D. MYERS, Presiding Judge, Superior Court of Arizona
in Maricopa County, was appointed to sit in his stead
pursuant to Ariz. Const. art. VI, 3.
190 Ariz. 208, 946 P.2d 459, 254 Ariz. Adv. Rep.