8th Circuit rejects Tribal Court jurisdiction in divorce case

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A Minnesota woman who is not a member of a tribe was bound by the marriage dissolution judgment of the Tribal Court, according to a ruling last year by a U.S. District Court judge. However, a panel of the 8th U.S. Circuit Court of Appeals held Dec. 12 that the Tribal Court lacked subject-matter jurisdiction under federal law.

In 2008, Robert Tix and Kristin McGowan were married in Minneapolis. Tix is an enrolled member of the Prairie Island Mdewakanton Dakota Indian Community (PIIC). He receives per capita payments from PIIC. Neither spouse worked, so they relied on the per capita payments. They did not live on any PIIC reservation lands. McGowan is not a member and is not eligible for enrollment with PIIC or any other Native American tribe.

The couple, who have three minor children, decided to divorce in 2022. The spouses separately filed petitions for dissolution. McGowan filed a summons and petition in Hennepin County District Court. She also filed for an Order for Protection (OFP) against Tix on behalf of herself and the children. On the same day, Tix filed his petition in the Court of the Prairie Island Mdewakanton Dakota Community.

Tix requested that the state court dismiss or stay McGowan’s dissolution proceeding and dismiss the parties’ children from the OFP. The Hennepin County District Court issued an order deferring jurisdiction to the Tribal Court. Subsequently, the Tribal Court issued its Findings of Fact, Conclusions of Law, Order for Judgment, and Judgment and Decree.

McGowan appealed, but the Tribal Court of Appeals concluded that McGowan voluntarily decided to marry a tribal member and found that McGowan had numerous contacts with PIIC. Thus, it concluded that PICC, as a sovereign entity, was able to exercise jurisdiction over McGowan.

The U.S. District Court agreed that McGowan’s contacts with the tribe were sufficient to support the Tribal Court’s exercise of jurisdiction. “[T]he record amply demonstrates that she could reasonably anticipate the exercise of tribal jurisdiction over the dissolution of that relationship according to the PIIC’s laws,” wrote Judge Katherine Menendez.

“Although the couple did not live on the tribal land, throughout their marriage, the couple’s financial needs were primarily met through the per capita payments Defendant received from the Tribe. In addition, the couple’s children received health and dental insurance coverage through the Tribe,” Menendez wrote. “And during the marriage, Kristin ‘attended powwows with the minor children.’”

The case was unique because, as the appellate panel stated, it was the first federal appellate court to determine the issue of whether tribal courts can possess subject matter jurisdiction over divorces between tribe members and nonmember spouses who did not live on the reservation during marriage.

“Indian courts differ from traditional American courts in a number of significant respects,” argued Mark Fiddler, attorney at Fiddler, Osband, Flynn, who represented McGowan. “Nonmembers have no part in tribal government. They have no say in the laws and regulations that govern tribal territory. … McGowan had no say in the laws that were applied to her.”

However, Leonard Powell, staff attorney at the Native American Rights Fund, asserted, “There’s visits to the reservation, civic events, community events, connections to family on the reservation. They stayed near the reservation. We have reservation resources coming to the family that McGowan availed herself of.”

The 8th Circuit panel found that there was not a sufficient nexus to the consensual relationship so that the nonmember could anticipate tribal jurisdiction. The panel determined that the marriage “no more than a de minimis relationship with Community lands or property.”

“They also did not enter as a married couple into any contracts or formal arrangements related to Community property or activities on Community land,” wrote Judge Raymond Gruender, who was joined on the panel by Judges David Stras and Jonathan Kobes. “Tix also does not suggest that the parties’ marital status was of legal significance to their occasional visits to the reservation, their children’s enrollment in the Community, or their reimbursement by the Community for their children’s educational expenses.”

The panel also rejected Tix’s argument that the exercise of authority by the Tribal Court protected the Community’s interest in the care of the parties’ children. The order regulates McGowan’s and others’ speech on topics about Native American/Dakota culture. The panel described these as “invasive exercises of authority over their nonmember mother outside the reservation.”

“We find such a need to be particularly implausible given the children have neither lived on Community lands nor been regular participants in tribal life,” Gruender wrote.

The panel reversed the District Court’s grant of summary judgment to Tix. The case has been remanded to the District Court with instructions to enter an order that states that the Tribal Court does not have subject matter jurisdiction over the divorce. Tix will be enjoined from seeking to enforce the Tribal Court’s divorce order.