5 NICS App. 58, HENRY v. WASHINGTON DSHS (June 1998)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Wayne V. Henry a/k/a Gonzalez, Appellant,

v.

State of Washington, Department of Social and Health Services, Division of Child Support Enforcement, Appellee.

No. TUL-Ci-7/97-817 (June 3, 1998)

SUMMARY

Snohomish County Superior Court ordered Appellant to pay child support and blood- test costs associated with the child support action. Appellant made no voluntary child support payments for several years, prompting the Division of Child Support to petition the Tulalip Tribal Court to grant full faith and credit to the Superior Court orders and to order payroll deductions against Appellant’s wages. Appellant objected on the ground that the action was barred by the Tulalip statute of limitations.

Trial court found: (1) tribal code does not have statute of limitations with regard to entry of foreign judgments; (2) the Tribe and State entered into an agreement, codified as Ordinance 86, regarding child support enforcement; (3) Ordinance 86 appears to have been promulgated in response to the Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B; (4) when the forum state and the state issuing the order have different statutes of limitations, the Act requires adoption of the longer statute of limitations; and (5) the State of Washington’s statute of limitations is ten years. The trial court applied Washington’s ten-year statute of limitations and ordered Appellant to pay entire arrearage and blood-test costs. We affirm.

FULL TEXT

Before:            Emma Dulik, Chief Justice; Charles R. Hostnik, Justice; Larry King, Justice.

Appearances:  Wayne Henry Gonzales, Appellant; William Yates, counsel for Appellee; and Michael Taylor, tribal Attorney, appearing as amicus.

Per curiam:

This matter came before the Tulalip Tribal Court of Appeals pursuant to Wayne Henry Gonzales’ Notice of Appeal filed on October 15, 1997. Appellant appeals from the October 2, 1997, Order on Entry of Foreign Judgment and for an Order of Payroll Deduction.

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I. JURISDICTION

This Court has jurisdiction over Appellant because he is an enrolled member of the Tulalip Tribes, he resides on the Tulalip Indian Reservation, and he is a tribal employee. The act which is the subject of this appeal occurred within the exterior boundaries of the Tulalip Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this matter pursuant to Ordinance No. 49 §1.2 and Ordinance No. 86 §III(B).

II. FACTUAL BACKGROUND

On September 26, 1991, the Superior Court of Snohomish County entered an order requiring Appellant, Wayne Gonzales, to pay child support of $279 each month, commencing in October of 1991. In December of that year, the court ordered Mr. Gonzales to pay $285 for blood-test cost associated with the child support action. That same month, the orders were forwarded to the Division of Child Support (DCS) for collection.

Over the course of the next several years, Mr. Gonzales made no voluntary payments on his child support obligation; however, DCS did intercept two of Mr. Gonzales’ Internal Revenue Service refunds totaling $1,712. In July of 1997, DCS filed a petition in the Tulalip Court requesting that the Superior Court order be granted full faith and credit in the Tulalip Court and, further, requesting that the tribal court issue an order of payroll deduction against Mr. Gonzales’ wages. Mr. Gonzales objected to the petition on the ground that the action was barred by the Tulalip statue of limitations.

The general tribal statue of limitations for civil matters is found at Ordinance 49, §1.15.2:

No complaint shall be filed alleging a civil cause of action unless the civil cause of action arose and/or accrued within six years prior to the date of the filing of a complaint in a matter involving the breach of a written contract and in all other matters within three (3) years, unless otherwise specified in a particular ordinance.

Ordinance 85, governing domestic relations, provides a statute of limitations with regard to support orders: “The court may not order payment for support provided or expenses incurred more than five years prior to the commencement of the action.” Ordinance 85, §7.12.

On December 2, 1995, the Tulalip Tribes adopted Ordinance 86, the Tulalip Child Support Enforcement Ordinance. Ordinance 86 reflects an agreement between the Tulalip Tribes and the Washington State Department of Social and Health Services Division of Child Support Enforcement to establish and enforce child support orders.

The trial court found: (1) the Tulalip Tribal Code does not contain a statute of limitations with regard to entry of foreign judgments; (2) the Tulalip Tribes and the State of Washington entered into an agreement, codified as Ordinance 86, concerning child support enforcement; (3) Ordinance 86 appears to have been promulgated in response to the Full Faith and Credit for Child Support

5 NICS App. 58, HENRY v. WASHINGTON DSHS (June 1998) p. 60

Orders Act, 28 U.S.C. § 1738B (the Act); (4) in child support enforcement proceedings, when the forum state and the state which issued the order have different statutes of limitations, the Act requires adoption of the longer statute of limitations; and (5) the State of Washington provides a ten- year statute of limitations.

Based on its findings, the trial court applied Washington’s ten-year statute of limitations and ordered Mr. Gonzales to pay, through payroll deductions, the entire arrearage of $17,260 plus $285 for the blood-test costs.

Mr. Gonzales filed his appeal on October 15, 1997. The Tulalip Tribes subsequently requested permission to file an amicus brief in this matter. Permission was granted. In view of the important issues at stake in this case, the Court also permitted counsel for The Tribes to participate in oral argument.

III. APPLICABILITY OF FULL FAITH AND CREDIT FOR CHILD SUPPORT ORDERS ACT

At the heart of this case is whether the Federal Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B applies on the Tulalip Reservation. Our analysis begins with the definition of “State” as contained in that Act. That term is defined as follows:

“State” means “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).

28 U.S.C. §1738B(b), as amended by Public Law 103-383. This definition could not be more broad. It purposely includes the entire reach of the United States Congress. This broad and pervasive reach is compelled by the findings and purposes of that Act as set forth in Section 2 of Public Law 103-383.

As applicable to this case, the federal act requires that in proceedings to enforce arrears due under child support orders, it is the law of the forum that applies, except as to statutes of limitation. In that event, the law of the forum is to be compared with the law of the court that issued the order. It is the longer statute of limitations that will apply to the proceeding to enforce arrears due under the child support order.

In this case the forum is the Tulalip Tribal Court. The parties concede that in this proceeding to enforce a child support order issued by a court of the State of Washington, the Washington statute of limitations encompasses a longer period than does the applicable Tulalip statute of limitations. If the federal act applies on the Tulalip Reservation, the Washington statute of limitation would apply to this proceeding to determine the length of time over which child support arrears can be collected.

5 NICS App. 58, HENRY v. WASHINGTON DSHS (June 1998) p. 61

We agree with the Tulalip Tribe that, absent the federal act, Tribal Ordinance No. 49 §1.2.3 requires this Court to apply tribal law exclusively. We may use foreign law as a guide to assist us in deciding a particular case only where no tribal law exists. The Tulalip Tribes have provided statutes of limitation to which we can turn. Therefore, there is no need to apply the federal act as a guideline under § 1.2.3 of Ordinance 49.

This interpretation is reinforced by the agreement entered into between the Tulalip Tribes and the State of Washington concerning child support enforcement. That agreement has been codified by the Tulalip Tribes as Ordinance 86. Under Ordinance 86 the State of Washington and the Tulalip Tribes have agreed that the Tulalip Tribal Court will apply its own support and collection standards and laws. See, Ordinance 86, Article I.

The Tribes argue that our analysis should stop here. They argue that the federal act should not apply because the Tribes possess inherent sovereign immunity, not waived by the act.

We acknowledge that a basic tenet of Indian law is that tribes posses sovereign immunity, but Congress can waive such immunity. Such waiver must be explicit and unequivocal. Martinez v. Santa Clara Pueblo, 436 U.S. 49, 56 L. Ed. 2d 106, 98 S.Ct. 1670 (1976). It is the Tribes’ position that no clear and unequivocal waiver is contained in the federal act. The federal act does not contain language such as, “No Indian tribe in exercising powers of self-government shall . . . .” See, Indian Civil Rights Act, 28 U.S.C. §1302. The Tribes point to such language as an example of a clear and unequivocal waiver of sovereign immunity.

We acknowledge that the statutory language used by Congress could have been more clear. However, we need not determine whether the Child Support Orders Act waives the Tribes’ sovereign immunity because we find it clear that the Tulalip Tribes have recognized that the federal act does apply on the Tulalip Reservation. This is based upon the direct language of Ordinance 86 adopted as law by the Tulalip Tribes.

The definition section of Ordinance 86 contains a provision which states as follows:

Reservation: In this document Reservation as it relates to the Tulalip will be consistent with the definition of the term “Indian Country” as defined in 18 U.S.C. §1151.

Ordinance 86, Article II(14). In addition, Ordinance 86 acknowledges that the Tulalip Reservation is included within the Act’s definition of “state”:

B. MODIFICATION IN TRIBAL COURT: The child support order, judgment or administrative determination originally established by a State court or the Department, which has been issued as a Tulalip Tribal Court Order, may be prospectively modified under the following circumstances:

5 NICS App. 58, HENRY v. WASHINGTON DSHS (June 1998) p. 62

(1) The Tulalip Tribal Court has continuing exclusive jurisdiction of the child support order for purposes of modification because the child, custodian, and the responsible parent reside on the Tulalip Reservation, which is defined as a state for purposes of P.L. 103-383 . . . .

Ordinance 86, Article III(B)(1)(emphasis added).

It is from these two provisions that regardless of whether the Child Support Orders Act by its own terms applies on the Tulalip Reservation, the Tribes have agreed to be bound by the Act and have legislatively adopted it in enacting Ordinance 86. In entering into this agreement the State of Washington has also agreed to be bound by tribal court orders in a manner which is consistent with Public Law 103-383. Ordinance 86, §IV(B). The Tribes specifically have agreed to comply with “applicable federal regulations and requirements” with respect to responsibilities and functions set out in §V of Ordinance 86. See, Ordinance 86, §IX(7). That section deals with the authority to enter and enforce child support orders “in compliance with PL 103-383.” Ordinance 86, §V(A).

This Court applauds the efforts of the Tulalip Tribes and the State of Washington to work together in a cooperative fashion in the difficult arena of child support enforcement. This is an area that is vitally important to the interests of tribal members and their children. The State and the Tribes have set forth detailed procedures to assist each sovereign in working across jurisdictional boundaries to achieve a balance between the often competing interests of custodial and non-custodial parents. The issues raised by this case are extremely important issues which have ramifications far beyond the agreement before us. It is not the intent nor the purpose of this Opinion to address issues beyond the facts presented by this case.

It is apparent from a reading of Ordinance 86 that the Tribe was well aware of the existence of Public Law 103-383, and clearly considered that Public Law to apply on the Tulalip Reservation. It is the intent of the agreement embodied by Ordinance 86 to comply with that Public Law and to act in conformance with its provisions. That presupposes compliance with the provisions of §3(h)(3) of the Child Support Orders Act. Therefore, the Washington statute of limitations, being the longer limitation period, applies in this action to enforce arrears due under a child support order.

The trial court is affirmed.