Authority of Indian Tribal Court to Issue Garnishment Writs Under 42 U.S.C. § 662(e)

Authority of Indian Tribal Court to Issue

Garnishment Writs Under 42 U.S.C. § 662(e)

A n In d ia n trib a l c o u r t is a “ c o u r t o f c o m p e te n t j u r i s d ic tio n " fo r p u rp o s e s o f issu in g

g a r n is h m e n t w r its u n d e r 4 2 U .S .C . § 6 6 2 (e ), if it h a s th e p o w e r u n d e r trib a l la w to issue

ju d g m e n ts a w a r d in g c h ild s u p p o r t o r a lim o n y .

February 28, 1980

M EM ORANDUM OPINION FOR T H E ASSOCIATE G EN ER A L

COUNSEL, O FFIC E O F PERSO N N EL M AN AG EM ENT

This responds to your request for our opinion whether the Yakima

Indian Nation Tribal Court is a “court of competent jurisdiction” for

purposes of 42 U.S.C. § 662(e), as implemented by the Office of Person­

nel Management’s proposed regulations. 44 Fed. Reg. 60301 (1979) (to

be codified in 5 C.F.R. 581.101-581.501). In our opinion, a tribal court

that establishes garnishment procedures may qualify as a court of com­

petent jurisdiction if it had the power to issue the underlying judgment

awarding child support or alimony. Absent the facts of a particular

case, we do not decide whether any particular tribal court is a “court

of competent jurisdiction.”

In 1975, Congress waived the sovereign immunity of the United

States in proceedings for enforcement of writs of garnishment -issued to

enforce orders for child support or alimony. Pub. L. No. 93-647,

§ 101(a), 88 Stat. 2357, 42 U.S.C. § 659. Prior to that Act, the pay of

federal employees was not subject to attachment for purposes of enforc­

ing court orders, including orders for child support and alimony. See

Buchanan v. Alexander, 45 U.S. (4 How.) 20 (1846); Applegate v. Apple­

gate, 39 F. Supp. 887, 889-90 (E.D. Va. 1941). Reflecting the “impor­

tance the Congress attributes to support payments,” a bill recommended

by the Senate Committee on Finance in 1975 provided that the money

“based upon remuneration for employment” of federal employees, in­

cluding military personnel, would be subject to garnishment in support

and alimony cases. S. Rep. No. 1356, 93d Cong., 2d Sess. 53-54 (1974).

The conference committee adopted this language. H.R. Rep. No. 1643,

93d Cong., 2d Sess. 23 (1974). As enacted, this provision states:

Notwithstanding any other provision of law, effective

January 1, 1975, moneys (the entitlement to which is

based upon remuneration for employment) due from, or

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payable by, the United States (including any agency or

instrumentality thereof and any wholly owned Federal

corporation) to an individual, including members of the

armed services, shall be subject, in like manner and to the

same extent as if the United States were a private person,

to legal process brought for the enforcement, against such

individual of his legal obligations to provide child support

or make alimony payments.

42 U.S.C. § 659. “Legal process” was not defined in the Act.

In 1977, Congress clarified this law by authorizing the issuance of

regulations to administer the law, providing specific conditions and

procedures, and defining the terms used in the garnishment statute. 42

U.S.C. §§661-662. See H.R. Rep. No. 263, 95th Cong., 1st Sess. 35

(1977). It defined legal process as follows:

The term “legal process” means any writ, order, sum­

mons, or other similar process in the nature of garnish­

ment, which—

(1) is issued by (A) a court of competent jurisdiction

within any State, territory, or possession of the United

States, (B) a court of competent jurisdiction in any for­

eign country . . . , or (C) an authorized official pursuant

to an order of such a court of competent jurisdiction or

pursuant to State or local law, and

(2) is directed to, and the purpose of which is to

compel, a governmental entity, which holds moneys

which are otherwise payable to an individual, to make a

payment from such moneys to another party in order to

satisfy a legal obligation of such individual to provide

child support or make alimony payments.

42 U.S.C. § 662(e) (1976 ed., Supp. IV 1980). The question posed is

whether an Indian tribal court is a “court of competent jurisdiction” for

the purposes of this section.

Garnishment is a purely statutory proceeding. See, e.g., Farmers Ins.

Exchange v. Ledesma, 214 F.2d 495, 497-98 (10th Cir. 1954); M ahomet

v. H artford Ins. Co., 3 Wash. App. 560, 477 P.2d 191 (1970). The

federal statute allowing garnishment of federal wages does not create a

right of action, it merely waives sovereign immunity and allows en­

forcement pursuant to laws governing the court in question. Kelley v.

Kelley, 425 F. Supp. 181, 183 (W.D. La. 1977); Harris v. Harris, 40 N.C.

App. 26, 252 S.E.2d 95, 96-97 (1979). Accordingly, it has been held

that a right to subject an employee’s wages to the claims of the plaintiff

must exist under state law. D iaz v. Diaz, 568 F.2d 1061, 1063 n.l (4th

Cir. 1977). A tribal court can be a court of competent jurisdiction for

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purposes of issuing garnishment writs, therefore, only if tribal law

creates a right of garnishment.

A writ of garnishment for purposes of § 659 must be based on a valid

judgment that the funds are due and owing to the plaintiff. Accord­

ingly, the court issuing the underlying judgment must have had both

subject matter jurisdiction and personal jurisdiction over the parties. It

is clear that many tribal courts, including the Yakima Indian Nation

Tribal Court, are courts of competent jurisdiction in domestic relations

cases. Confederated Tribes and Bands o f the Yakima Indian Nation v.

Washington, 608 F.2d 750, 752 (9th Cir. 1979). It has been held that the

power to regulate the domestic relations of its members is among the

powers which tribes possess by virtue of their quasi-sovereign status.

See Fisher v. District Court, 424 U.S. 382, 390 (1976); United States v.

Quiver, 241 U.S. 602, 603-04 (1916); Conroy v. Conroy, 575 F.2d 175,

181 —82 (8th Cir. 1978). In Fisher, the Court ruled that tribal jurisdiction

over a proceeding for adoption, by Indians, of a son of Indian parents,

where all parties resided on the reservation, was exclusive. 424 U.S. at

389. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978), the

Court noted that tribal courts have repeatedly been recognized as

appropriate forums for the exclusive adjudication of disputes affecting

important personal and property interests of both Indians and non-

Indians.

In light of these holdings, it must be recognized that many tribal

courts are courts of competent jurisdiction for purposes of alimony and

child support decrees. The federal garnishment statute, which defines

“child support” and “alimony,” refers to judgments “issued in accord­

ance with applicable State law by a court of competent jurisdiction.” 42

U.S.C. § 662(b) and (c) (1976 ed., Supp. IV 1980) (emphasis added). We

do not read this definition to exclude tribal court judgments, however.

There is no evidence that Congress meant to exclude tribal law. The

committee reports cited above do not discuss the question of tribal

court jurisdiction. It is likely that the issue simply did not arise. The

intent of the law, however, was to remove a barrier against garnish­

ment of federal wages where a valid judgment decreed that alimony or

child support was due. See S. Rep. No. 1356, 93d Cong., 2d Sess. 53-54

(1974). It would defeat the intent of the law, and undermine the integ­

rity of tribal court judgments, to refuse to recognize them as valid

judgments under the garnishment statute.

In sum, we see no legitimate basis either for denying the benefits of

the federal wage garnishment law to Indian litigants or for requiring

them to seek a garnishment writ in state courts. If the tribal court had

jurisdiction over the underlying suit, and if a garnishment right is

created by tribal law, then the tribal court should be considered a court

of competent jurisdiction for purposes of 42 U.S.C. § 662(e) (1976 ed.,

Supp. IV 1980).

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We note that we do not intend to suggest that the federal garnishee

or its agents must examine the jurisdictional basis for the underlying

judgment. Section 659(0 provides:

Neither the United States, any disbursing officer, nor gov­

ernmental entity shall be liable with respect to any pay- .

ment made from moneys due or payable from the United

States to any individual pursuant to legal process regular

on its face, if such payment is made in accordance with

this section and the regulations issued to carry out this

section.

Federal courts have refused to entertain suits against federal defendants

filed by plaintiffs alleging that the defendants recognized invalid state

court judgments. Overman v. United States, 563 F.2d 1287, 1291-92 (8th

Cir. 1977) (held that waiver of sovereign immunity did not include suit

against United States to challenge validity of garnishment based on

allegedly fraudulent divorce decree); Jizmerjian v. Departm ent o f the A ir

Force, 457 F. Supp. 820, 823-24 (D.S.C. 1978) (held that 42 U.S.C.

§ 659(0 insulates the United States from suit challenging garnishment

based on allegedly invalid alimony decree). If the garnishment is pursu­

ant to “legal process regular on its face,” and the federal statute and

regulations are followed, you need inquire no further.

L eon U lm an

D eputy Assistant Attorney General

Office o f L egal Counsel

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