Amicus Brief for the United States — Lonewolf v. Lonewolf

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F ED

No. 82-1564 OCT 20 1983

In the Supreme Court of the United States

OCTOBER TERM, 1983

JOSEPH LONEWOLF, APPELLANT

THERESA REY LONEWOLF

ON APPEAL FROM THE SUPREME COURT OF NEW MEXICO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

Rex E. LEE

Solicitor General

F. HENRY HABICHT, II

Acting Assistant Attorney General

KATHLEEN P. DEWEY

Attorney

Department of Justice

Washington, D.C. 205380

(202) 633-2217

QUESTIONS PRESENTED

1. Whether this Court has jurisdiction over the ap-

peal in this case under 28 U.S.C. 1257(2).

2. Whether, in a divorce proceeding involving an In-

dian spouse and a non-Indian spouse whose marital domi-

cile was on the Santa Clara Pueblo, the New Mexico state

court had jurisdiction to award to the non-Indian spouse

a share of the value of property created by the Indian

spouse and located on the Pueblo.

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TABLE OF CONTENTS

Cases:

Page

SESE SE enrce nol ee Ree eee ea ae a 1

RR tt ee ere a ie OE 4

EE RS IEEE > FO RE ELD 20

TABLE OF AUTHORITIES

Antoine Vv. Washington, 420 U.S. 194 .......0............ 7

ASARCO, Inc. v. Idaho State Tax Comm’n, No.

I I cieborenies 7

Begay V. Miller, 70 Ariz. 380, 222 P.2d 624 _.......... 12

Brenholdt v. Brenholdt, 94 N.M. 489, 612 P.2d

pele DE anaes SERA Peo TO lee A CA RRC Ree 19

Bryan v. Itasca County, 426 U. S. ee 14

Burrus, In re, 136 U.S. 586 .. 12

Central Machinery Co. V. Arizona “State ‘Taz

ns I ccunbinicanembionaies 7

Charleston Federal Savings & Loan Ass’r. v. Al-

ST ere CaP a 6

Chino v. Chino, 90 N.M. 203, 561 P.2d 476 ......... 10

Citizens National Bank v. Durr, 257 U.S. 99 .......... 7

Conroy V. Conroy, 576 F.2d 1756 .............2-----cccc---eee--- 12

Container Corp. V. Franchise Tax Board, No. 81-

I a icialicent 7

Dahnke-Walker Co. v. Bondurant, 257 U.S. 282.... 5

DeCoteau v. District County Court, 420 U.S. 425... 11

Pp a, Se ee 15, 16

F. W. Woolworth Co. v. Taxation & Revenue Dep't,

No. 80-1745 (June 29, 1982) .. baa Ser Pes 7

Feliz v. Patrick, 145 U.S. 317 .. Fes 14

Fisher Vv. Fisher, 104 Idaho 68, 656 P2d 129. Bey Sat 10-11

Fisher v. District Court, 424 U.S. 382 0... 11,13

Haddock v. Haddock, 201 U.S. 562 .. ee 14

Hanson v. Denckla, 357 U.S. 235 . ee

Hiaquierdo v. Hisquierdo, 439 U.S. 572 | taal nA se 12

Hughes Vv. Hughes, 91 N.M. 339, 573 P.2d 1194... 19

Illinois v. Gates, No. 61-430 (June 8, 1983)... 10

(x11)

Cases—Continued Page

Japan Line, Ltd. v. County of Los Angeles, 441

UR, GG a niccinintunnsastishacesinenbindieemeiniaananee 7

Kennerly v. District Court, 400 U.S. 423 0000.0... 13

Kulko v. California Superior Court, 486 U.S. 84... 6,7

Marris vy. Sockey, 170 F.2d 599, cert. denied, 336

if Sh | Peeps eT 12

McCarty v. McCarty, 453 U.S. 210 ....0000002.. 7,12

McClanahan vy. Arizona State Tax Comm'n, 411

WEB BI scrensceviinsiisinciceriusiizatinsistanciehateenaaaee 7,12, 18,14

Memphis Bank & Trust Co. v. Garner, No. 81-1613

+? SS ee 7

Memphis Natural Gas Co. v. Beeler, 315 U.S. 649.. 6-7, 8

Minneapolis Star & Tribune Co. Vv. Minnesota

Comm’r of Revenue, No. 81-1839 (Mar. 29,

| TE MC SARE PBR RE bas ue 7

Montana v. United States, 450 on | Pease Te 11, 12

Morton V. Basie, 415 Ub. BBD cccccocesensasecscenswsssssssntanes 16

New Mezico Vv. Mescalero Apache Tribe, No. 82-331

+}: So Ee eee er ihe er 11,15

Nofire v. U. ited States, 164 U.S. 657 _.................. 13

Ramah Navajo School Board, Inc. vy. Bureau of

Revenue, No. 80-2162 (July 2, 1982) —................ 7,15

Raymond v. Raymond, 88 F. 721 ......................------- 12

Red For & Red Foz, In re, 23 Or. App. 393, 542

DARE GBA, ..n<ccrecsiticitimsinciipiatbictendaigiisigae ae 12

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

GD -.-ccunininstinnisenenitetianeiianaminianiaaeieglaa ia 5, 6,9

Ridgway v. Ridgway, 454 U.S. 46 ........ PERE Fi 12

Rohr Aircraft Corp. v. San Diego County, 362 U.S.

Santa Clara Pueblo vy. Martinez, 436 U.S. 49 ....11, 12, 13

Sheppard v. Sheppard, 104 Idaho 1, 655 P.2d 895... 19, 11

Three Affiliated Tribes of the Fort Berthold Reser-

vation Vv. Wold Engineering, P.C., cert. granted,

No. 82-629 (Apr. 25, 1988) ...............---.------- 4

United States v. Candelaria, 271 US. 432 14

United States v. John, 487 U.S. 634 200... 7

United States v. McBratney, 104 U.S. 621... | 12

United States v. Quiver, 241 U.S. 602 0... 1

United States v. Wheeler, 435 U.S. 318 0... 11, 12

Cases—Continued 7 Page

Vanderbilt v. Vanderbilt, 354 U.S. 416 ................... 16

Warren Trading Post v. Arizona Taz Comm'n, 380

Sn IITTI siesconncuunsedegnestnceddenttniniekiniansssindbtcedasaiaupadibhsbentiacs 7

White Mountain Apache Tribe Vv. Bracker, 448 U.S.

TP sala dsishintecittaniiaientabeidlasisisinis hinebebtten sontniactentntug diaas 15

Williams v. Lee, 358 U.S. 217 ............... 9, 10, 12, 18, 14, 17

Williams v. North Carolina, 317 U.S. 287 ....12, 14, 15, 18

eR Ot ens: 6

Xerox Corp. Vv. County of Harris, No. 81-1489

SS ES SEUEEIIED Seciceunpttelindacciedietbastsieehoneunlencbiciantcsameiniiiniaats 7

Yakima Joe v. To-Is-Lap, 191 F. 516 ...000000..000........ 12

Statutes and regulations:

Act of Aug. 15, 1953, ch. 505, 67 Stat. 588 ......10, 11, 19

Indian Child Welfare Act of 1978, 25 U.S.C. (Supp.

ek \ ff Se eer een ees ll

SB We GC, WP. TREC: cm cccccccscccsszsecoens 11

I RamntEe SEIEIUIIEIT < ccncioctuissuntieishicesnacnatenieluninanesnianagsasieimmetions 5,8

gk RR me 10

Bit i a, eee cacaapaniaieaieniail 4, 5, 6, 7,9, 20

I a ee 5

N.M. Stat. Ann. (1978):

SE NC eI Ea RATS eT 4,19

a at RES Re ance SS ot! Joe ae

2 SISSIES ATES ae: 5 ON BAC PAN 2

§ 40-4-20.......... RT BS Fo RE EL NA PE APE 18

Santa Clara Tribal Code (Dec. 9, 1981):

NR | Bea CS Tea ot oa ees emu ti ode 20

| Ele a eee cae 20

25 C.F.R.:

TE | SOE ae Pes eee near ne = 16

IIR Eman ee | 12

P. Bator, P. Mishkin, D. Shapiro & H. Wohaier,

The Federal Courts and the Federal System (2d

ME GD seivweibintaii SO he TI A ie a x

Miscellaneous:

F. Cohen, Handoook of Federal Indian Law

(1942) 12

Miscellaneous—Continued

12 Moore, Bendix & Ringle, Moore’s Federal Prac-

ge: f & Baa See ee

19 Op. Att’y Gen. 109 (1888) ..............eeececceeeeeeeeees

Stern & Gressman, Supreme Court Practice (5th

ed. 1978) .

16 C. Wright, A. Miller, E. Cooper & E. ‘Gressman,

Federal Practice and Procedure (1977) ..............

In the Supreme Court of the United States

OCTOBER TERM, 1983

No. 82-1564

JOSEPH LONEWOLF, APPELLANT

THERESA REY LONEWOLF

ON APPEAL FROM THE SUPREME COURT OF NEW MEXICO

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This Brief is submitted in response to the Cour’s in-

vitation to the Solicitor General to express the views of

the United States.

STATEMENT

Joseph Lonewolf and Theresa Lonewolf, appellant and

appellee respectively, were married in 1951 in the State

of New Mexico pursuant to a state marriage license (J.S.

App. 39; Mot. to Dis. or Aff. 1-2). For approximately

20 years, the Lonewolfs lived on non-Pueblo lands, but in

1972 they moved to the Santa Clara Pueblo and lived in

a house on land owned by the Pueblo and assigned to ap-

pellant (J.S. App. 30; Mot. to Dis. or Aff. 2). Appellant

is an Indian and is an enrolled member of the Santa

Clara Pueblo, but Mrs. Lonewolf is a non-Indian and is

not a member of the Pueblo. The couple’s three children,

all of whom are over the age of 21, are enrolled members

of the Pueblo (J.8S. 11, 14; J.S. App. 40).

The Lonewolfs separated on or about February 11,

1979 (J.3. App. 39, 42). Mrs. Lonewolf thereafter filed

a petition for-legal separation in the District Court for

(1)

the First Judicial District of the County of Rio Arriba,

New Mexico, on March 26, 1979 (id. at 39-43). She

sought, inter alia, interim relief prohibiting appellant

from disposing of community property and an order re-

quiring appellant to show cause why she should not have

possession of a vehicle and the house on the Pueblo and

why a temporary order restraining appellant from dis-

posing of property should not be made final (id. at 42).

In his April 2, 1979 response to the order to show cause,

appellant asserted that the state court lacked jurisdiction

over the dwelling and other property located on the

Pueblo (id. at 44).

On April 27, 1979, appellant filed an answer to the

petition for separation and counterclaimed for divorce

(J.S. App. 46-51). In his answer, appellant noted that

the request for relief pendente lite had been rendered

moot by an agreement between the parties (id. at 46).

In his accompanying counterclaim for divorces appellant

contended that.the state district court had jurisdiction to

grant the parties a divorce because of Mrs. Lonewolf’s

residence (id. at 49),’ but he again maintained that all

property acquired by the parties during the marital re-

lationship was subject to the jurisdiction of the Pueblo

of Santa Clara, not the state court. He therefore re-

quested the state court to determine that the Santa Clara

Tribal Court had jurisdiction over all matters pertaining

to the couple’s property (id. at 49). Appellant also re-

quested “an equitable division of the community debts”

and “such other and further relief as to the Court may

seem proper” (ibid.). The court entered an order dis-

solving the marriage on December 13, 1979 (id. at 30).

Mrs. Lonewolf asserts that she moved off the Pueblo at

some point after the separation (Mot. to Dis. or Aff. 2),

but she does not identify precisely when she did so. Mrs.

' The relevant New Mexico statute confers jurisdiction on

Lonewolf did testify, however, that the couple’s marital

domicile was on the Pueblo until the time of the divorce

in December 1979 (May 7, 1981 Tr. 65).

The district court held that it had no jurisdiction over

lands located on the Santa Clara Pueblo? but that it did

have jurisdiction over the parties’ personal property,

whether located on or off the Pueblo (J.S. App. 35). The

parties then entered into a stipulation providing for the

distribution of most of the couple’s personal property and

debts, and the court approved that stipulation (id. at 31,

32, 36). The parties could not agree, however, on the

division of certain items of Indian pottery made by ap-

pellant, a potter with a studio and gallery on the Pueblo.

After a hearing regarding the pottery, the whereabouts

of which were unknown, the court valued it in excess of

$56,000 and ordered appellant to pay Mrs. Lonewolf

$18,309, representing one-half of the value of the pots

less certain deductions in appellant’s favor. After entry

of judgment, a writ of garnishment was executed against

appellant’s account in a bank located off the Pueblo to

satisfy thie amount, but the writ was dissolved after ap-

pellant deposited the required amount with the state

court (J.S. App. 22; Mot. to Dis. or Aff. 3) .*

Appellant appealed to the Supreme Court of New Mex-

ico from that portion of the trial court’s judgment re-

garding the pottery, and the Supreme Court of New

Mexico affirmed (J.S. App. 20-26). The court reasoned

that rights to personal property were not tied to lands

Santa Clara Pueblo and leased under an agreement between appel-

lant and the All Indian Housing Authority. The court further

found that Mrs. Lonewolf, as a non-Indian, could

to lands located on the Pueblo and

Pueblo (J.8. App. 30-81).

* See also Appellant's Brief in Chief in

New Mexico at 2; Appellee’s Answer Brief

of New Mexico at 4-4.

within the Pueblo and that Mrs. Lonewolf’s right under

New Mexico law to control and dispose of community

property (see N.M. Stat. Ann. § 40-3-14 (1978)) trav-

eled with her off the Pueblo (J.S. App. 24). In the Su-

preme Court’s view, once the district court had jurisdic-

tion to dissolve the marriage, it had jurisdiction to de-

termine the proper distribution of the couple’s community

property (id. at 24-25). The Supreme Court further held

that appellant had submitted to the state court’s juris-

diction when he filed his counterclaim for divorce and

when he entered into a stipulation for the distribution of

personal property other than the pottery and that he

could not subsequently deny jurisdiction specifically as to

the pottery (id. at 25).

DISCUSSION

We agree with appellee that an appeal does not lie to

this Court under 28 U.S.C. 1257(2) from the decision of

the Supreme Court of New Mexico because the validity of

a state statute was not drawn in question in the courts

below. If the Court agrees and therefore treats the pa-

pers whereon the appeal is taken as a petition for a writ

of certiorari, we submit that this case does not warrant

plenary consideration because the precise circumstances

of the case are both atypical and somewhat unclear and

because the question of jurisdiction w order a division of

property in a divorce involving an Indian and non-Indian

spouse has not received extensive consideration by the

state courts. That question is, however, somewhat related

to the question presented in Three Affiliated Tribes of

the Fort Berthold Reservation v. Wold Engineering, P.C.,

cert. granted, No. 82-629 (Apr. 25, 1983). In the latter

case, the issue is whether a state court has jurisdiction

over a civil action brought by an Indian Tribe against a

non-Indian defendant concerning matters arising on an

Indian reservation. The Court therefore may wish to

hold the jurisdictional statement in this case pending a

decision in Three Affiliated Tribes.

1. a. Under 28 U.S.C. 1257(2), this Court has ap-

pellate jurisdiction over a final judgment rendered by

the highest court of a state “where is drawn in question

the validity of a statute of any state on the ground of its

being repugnant to the Constitution, treaties or laws of

the United States, and the decision is in favor of its

validity.” An appeal lies under this Section whether the

validity of the state statute was challenged on its face or

as applied. Dahnke-Walker Co. v. Bondurant, 257 U.S.

282 (1921). On the other hand, this Court has certiorari

jurisdiction under 28 U.S.C. 1257(3) to review the judg-

ment of a state court where, inter alia, “any title, right,

privilege or immunity is specially set up or claimed under

the Constitution, treaties or statutes of, or commission

held or authority exercised under, the United States.”

In construing these provisions, the Court consistently

has distinguished between cases in which a state statute

has been attacked as applied and those in which a party

has resisted a particular exercise of state authority on

the ground of a federal immunity without actually con-

testing the validity of a state statute. Only cases in the

former category are within the Court’s appellate juris-

diction under 28 U.S.C. 1257(2), even though the exer-

cise of state power challenged in cases in the latter cate-

gory may be authorized by a state statute.‘

For example, in Richmond Newspapers, Inc. v. Vir-

ginia, 448 U.S. 555 (1980), which involved the right of

aceess of the public and the press to criminal trials, a

*A related question of this Court’s appellate jurisdiction under

28 U.S.C. 1254(2) over a judgment of a federal court of uppeals

where the validity of a state statute is involved is presented in

Silkwood v. Kerr-MeGee Corp., No. 81-2159 (argued Oct. 4, 1983).

We have argued in Silkwood that principles developed under 28

U.S.C. 12567(2) should be applied under 28 U.S.C. 1254(2) as

well. See U.S. Br. as Amicus Curiae at 2-10. The Court therefore

may wish to hold the jurisdictional statement in this case pending

the decision in Siikwood. The interpretation of 28 U.S.C. 1254(2)

in this regard also is involved in Besadny v. Lac Courte Oreilles

Band of Lake Superior Chippewa |ndians, appeal pending, No. 83-6.

state statute provided that the trial court, in its discre-

tion, could exclude from a trial any persons whose pres-

ence would impair the conduct of a fair trial if the right

of the accused to a public trial was not violated. 448

U.S. at 560 n.2, The Court nevertheless held that juris-

diction by appeal did not lie under 28 U.S.C. 1257(2),

explaining (448 U.S. at 562-563 n.4):

“It is essential to our jurisdiction on appeal * * *

that there be an explicit and timely insistence in the

state courts that a state statute, as applied, is repug-

nant to the federal Constitution, treaties or laws.”

Charleston Federal Savings & Loan Assn. y. Alder-

son, 324 U.S. 182, 185 (1945). Appellants never ex-

plicitly challenged the statute’s validity. In both the

trial court and the State Supreme Court, appellants

argued that constitutional rights of the public and

the press prevented the court from closing a trial

without first giving notice and an opportunity for a

hearing to the public and the press and exhausting

every alternative means of protecting the defendant’s

right to a fair trial. Given appellants’ failure ex-

plicitly to challenge the statute, we view these argu-

ments as constituting claims of rights under the Con-

stitution, which rights are said to limit the exercise

of the discretion conferred by the statute on the trial

court.

The Court also has dismissed appeals where a party has

alleged that the federal Constitution prevents the exer-

cise of jurisdiction by a state court but where the party

has not explicitly chalienged the validity of the state stat-

ute authorizing the assertion of that jurisdiction. See

Kulko v. California Superior Court, 436 U.S. 84, 90 n.4

(1978); Hanson v. Denckla, 357 U.S. 285, 244 n4

(1958).*

* The Court has taken a similar view where a party has asserted

a federal immunity to state taxing power. Rohr Aircraft Corp. v.

Son Diego County, 362 U.S. 628, 629-680 (1969); Wilson v. Cook,

B27 U.S. 474, 480-482 (1946); Charleston Federal Savings & Loan

Ass'n V. Alderson, 824 U.S. 182, 185-187 (1945); Memphis Natural

We do not doubt that appellant properly could have

framed his contentions in the state courts as an attack

on the validity, as applied to personal property located

om the Pueblo, of the New Mexico statutes authorizing

a court entertaining an action for dissolution of marriage

to divide the spouses’ property. Cf. McCarty v. McCarty,

453 U.S. 210, 219-220 n.12 (1981). Indeed, this Court,

often without discussion, has entertained appeals from

state courts in cases involving the application to Indians

of a state law that was said to conflict with federal law

or infringe upon the federally protected sovereignty of

the Tribe.* But, as we explain below, appellant did not

frame his argument in state court as an attack on the

relevant state statutes, and that is critica’ to the ex-

istence of appellate jurisdiction. The Court has made

clear that jurisdiction under 28 U.S.C. 1257(2) often

depends upon the manner in which the parties have

Gas Co. Vv. Beeler, 315 U.S. 649, 650-651 (1942); Citizens National

Bank v. Durr, 257 U.S. 99, 106 (1921). See also Japan Line, Ltd.

Vv. County of Los Angeles, 441 U.S. 434, 440-441 (1979). In a

number of more recent cases, the Court has not discussed the

jurisdictional issue involved here in entertaining appeals from

state courts under 28 U.S.C. 1257(2) to consider the validity of a

state tax as applied to certain income or property. See, ¢.g.,

ASARCO, Inc. Vv. Idaho State Taz Comm'n, No. 80-2015 (June 29,

1982); F. W. Woolworth Co. Vv. Tazation & Revenue Dep't, No.

80-1745 (June 29, 1982); Xeroz Corp. v. County of Harris, No.

81-1489 (Dec. 13, 1982); Memphis Bank & Trust “o. v. Garner,

No. 81-1613 (Jan. 24, 1983); Minneapolis Star & Tribune Co. Vv.

Minnesota Comm'r of Revenue, No. 81-1839 (Mar. 29, 1983);

Container Corp. V. Franchise Taz Board, No. 81-523 (June 27,

1983).

* See, ¢.g.. Ramah Navajo School Board, Inc. v. Bureau of Reve-

nue, No. 80-2162 (July 2, 1982), slip op. 4; Central Machinery Co.

v. Arizona State Taz Comm'n, 448 U.S. 160, 163 (1980); United

States v. John, 487 U.S. 634, 637-688 (1978); Antoine Vv. Wash-

ington, 420 U.S. 194, 197 (1975); McClanahan Vv. Arizona State

Taz Comm'n, 411 U.S. 164, 166 (1978); Werren Treding Post v.

Arizona Taz Corem'n, 380 U.S. 685, 686 n.1 (1965).

structured their arguments. See Memphis Natural Gas

Co. Vv. Beeler, 315 U.S. 649, 650-651 (1942).’

b. In his formal pleadings in the state trial court,

appellant contended that the court had no “jurisdiction”

over property located on the Santa Clara Pueblo, but he

did not cite any particular state statute or seek a declara-

tion that any such statute is invalid on the ground of its

repugnancy to federal law or the Constitution (J.S. App.

44, 46, 49).* The trial court concluded that it did “have

jurisdiction over the personal property which is the com-

munity property of the parties, whether the same is lo-

cated on or off the reservation” (J.S. App. 35), but the

court likewise did not cite a specific statute or indicate

that it was sustaining a statute against a challenge to

its validity under federal law.

Moreover, as appellee notes (Mot. to Dis. or Aff. 5),

in his briefs in the Supreme Court of New Mexico, ap-

pellant again did not cite any state statute or contend

that any such statute is invalid. His argument essen-

tially was that the exercise of jurisdiction by the trial

court was inconsistent with federal law and infringed

upon the right of the Indians to make their own laws.

Appellant’s Brief in Chief at 3-8, 14; Appellant’s Reply

Brief at 1-5, 9-12. Especially in light of appellant’s fail-

ure even to cite a state statute, we believe this argument

should be understood as an assertion that federal law

or the federally protected sovereignty of the Tribe con-

ferred an immunity from the exercise of jurisdiction by

the state court, rather than an attack on the validity of

7 See also 12 Moore, Bendix & Ringle, Moore's Federal Practice

£513.01, at 8-80 to 8-81 (2d ed. 1982); 16 C. Wright, A. Miller,

E. Cooper & E. Gresasman, Federal Practice and Procedure § 4012,

at 616, 617-618 (1977); P. Bator, P. Mishkin, D. Shapiro & H.

Wechsler, The Federal Courts and the Federal System 637-640 (2d

ed. 1978); Stern & Gresstuan, Supreme Court Practice 163-165

(Sth ed. 1978).

*Compare U.S. Mot. to Dis. in Part and Aff. in Part at 10,

Besadny v. Lac Courte Band of Lake Superior Chippewa

Indians (No. 83-6, 1983 (28 U.B.C. 1254(2)).

the state statutes that confer jurisdicion on the court and

empower it to divide property.

The opinion of the Supreme Court of New Mexico

supports this conclusion. The Supreme Court stated that

the issue on appeal was whether “the New Mexico dis-

trict court had jurisdiction to determine the disposition

of community personal property located on the Santa

Clara Reservation when one of the parties is an enrolled

member of the Pueblo of Santa Clara” (J.S. App. 21),

and the Court stated that the test “for exercise of state

court jurisdiction” over matters involving Indian Tribes

is “whether the state infringed on the right of reserva-

tion Indians to make their own laws and be ruled by

them” (id. at 22-23, quoting Williams v. Lee, 358 U.S.

217, 220 (1959)). There was no reference to state stat-

utes in this portion of the opinion. These statements

therefore suggest that the Supreme Court likewise viewed

the issues presented not in terms of the validity of the

statutes as such, but rather in terms of whether the

trial court’s exercise of its jurisdiction infringed upon a

federally protected right or immunity. The case there-

fore resembles Richmond Newspapers, Inc. vy. Virginia,

Kulko v. California Superior Court, and Hanson v.

Denckla, supra, in which this Court held that an ap-

peal did not lie under 28 U.S.C. 1257(2).® The appeal

accordingly should be dismissed for lack of jurisdiction.’®

* To be sure, the Supreme Court of New Mexico did cite several

state statutes elsewhere in its opinion, noting that “Mr«. Lonewolf

properly invoked the jurisdiction of the district court for dissolu-

tion of the marriage, Section 40-4-5, N.M.S.A., and for division

of the property, Section 40-4-7, N.M.S.A. 1978” (J.S. App. 24).

This statement, however, appears to be nothing more than a je

scription of Mrs. Lonewolf's invocation of state procedures, rather

than an indication that the validity of the cited state statutes was

at issue.

1° We do not agree with appellee (Mot. to Dis. or Aff. 5) that

appellant did not sufficiently raise in state court the

2. It is our view that the Supreme Court of New

Mexico erred in holding that, in the absence of the as-

sumption by New Mexico of jurisdiction pursuant to

Public Law 280," the state trial court had jurisdiction

lant’s argument in the Supreme Court of New Mexico was that

the district court effectively determined who “stole” the missing

pots when it awarded Mrs. Lonewolf one-half of their value (less

certain deductions) and that the court therefore in substance

improperly exercised criminal jurisdiction over an on-reservation

offense involving an Indian. See Appellant’s Brief in Chief at 3-5,

9-13. But appellant also argued that the exercise of jurisdiction

by the state court interfered with tribal self-government under

Williams v. Lee (Appellant’s Brief in Chief at 6-9; Reply Brief at

8-5, 9-11), and the Supreme Court of New Mexico addressed

appellant’s arguments in those terms (J.S. App. 22-25). This was

sufficient to permit the exercise of jurisdiction under 28 U.S.C.

1257. See Illinois v. Gates, No. 81-430 (June 8, 1983), slip op. 2-8.

Appellant also identifies (J.S. 2) as a separate question pre-

sented the question whether New Mexico’s application of its com-

munity property laws to determine the character and nature of

personal property created and held on the Pueblo impermissibly

infringed on the power of the Indians to make their own laws and

be governed by them. This precise issue was not separately

addressed in the courts belotv. Nevertheless, in the circumstances

of this case, we believe that the propriety of the application of

the state’s community property laws is fairly subsumed in the

broader issue of the state’s exercise of “jurisdiction” over the

property and that consideration of this issue therefore would be

appropriate as well if the Court were to grant review in this case.

11 Act of Aug. 15, 1953, ch. 505, 67 Stat. 588. Although Public

Law 280 permits a state to assume jurisdiction over divorces in-

volving Indians (see Bryan v. Itasca County, 426 U.S. 378, 384 n.10

(1976) ), New Mexico has not acquired civil jurisdiction under

Public Law 280. Chino v. Chino, 90 N.M. 203, 206, 561 P.2d 476,

479 (1977). This factor distinguishes ‘he decision in Sheppard v.

Sheppard, 104 Idaho 1, 655 P.2d 895 (1°82), the only other decision

Supreme Court held that the state trial court, in a divorce pro-

ceeding brought by a non-Indian spouse against an Indian spouse,

had jurisdiction to order a division of the couple’s property located

on the reservation and to order the Indian spouse to reimburse the

non-Indian spouse for the latter’s share of the community property

used to purchase a trust asset. However, the Idaho Supreme Court

relied on the enactment of Public Law 280 for the assertion cf

jurisdiction in the case. 655 P.2d at 906-908. See also Fisher v.

in this divorce proceeding to award Mrs. Lonewolf a

share of the value of the pottery made by appellant on

the Pueblo. However, treating the papers whereon the

appeal is taken as a petition for a writ of certiorari, we

do not believe the case merits plenary review.

a. Although the circumstances of the controversy

make it difficult to fit this case precisely within estab-

lished principles governing the exercise by a State of ju-

risdiction over Indians and reservation matters, it never-

theless is useful to reiterate those principles at the out-

set and to identify the relative interests of the Tribe and

and the State.

It is, of course, well settled that an Indian Tribe, as

an inherent attribute of its sovereignty, has exclusive

jurisdiction over matters relating to the domestic rela-

tions of its members, at least insofar as concerns con-

duct ou the reservation. See, e.g., Montana v. United

States, 450 U.S. 544, 564 (1981); Santa Clara Pueblo

v. Martinez, 436 U.S. 49, 55-56 (1978); United States

v. Wheeler, 485 U.S. 3138, 322 n.18 (1978); Fisher v.

District Court, 424 U.S. 382, 386-389 (1976); United

States v. Quiver, 241 U.S. 602 (1916). Cf. New Mexico

v. Mescalero Apache Tribe, No. 82-331 (June 13, 1983),

slip op. 8-9; DeCoteau v. District County Court, 420 U.S.

425, 428-430 & n.3 (1975). This view is reflected in the

Indian Child Welfare Act of 1978, 25 U.S.C. (Supp. V)

1901 et seg., which provides that an Indian Tribe shall

have exclusive jurisdiction over custody proceedings in-

volving an Indian child domiciled or residing on the res-

ervation, except where jurisdiction is otherwise vested in

the State by existing federal law. 25 U.S.C. (Supp. V)

1911(a).’* Consistent with these principles, there would

Fisher, 104 Idaho 68, 656 P.2d 129 (1982) (similar case in which

both spouses were Indians). The decision in Sheppard v. Sheppard

therefore does not suggest that a state court would have such juris-

diction even in the absence of Public Law 280, as the New Mexico

Supreme Court held here.

i2 The authority of an Indian Tribe in the area of domestic

relations is closely related to the long-recognized power of a Tribe

seem to be little doubt that an Indian Tribe retains in-

herent jurisdiction over the dissolution of a marriage be-

tween two of its members who are domiciled on the res-

ervation and over the division and distribution of the

spouses’ property in connection with that dissolution, at

least insofar as that property is situated on the reserva-

tion. See, e.g., Conroy v. Conroy, 575 F.2d 175 (8th Cir.

1978) ; Marris v. Sockey, 170 F.2d 599 (10th Cir. 1948),

cert. denied, 336 U.S. 914 (1949); Yakima Joe v. To-Is-

Lap, 191 F. 516 (D. Or. 1910); Raymond v. Raymond,

83 F. 721 (8th Cir. 1897) ; F. Cohen, Handbook of Federal

Indian Law 120, 187-139 (1942); ef. Begay v. Miller, 70

Ariz. 380, 222 P.2d 624 (1950); In re Red For & Red

Fox, 23 Or. App. 393, 399, 542 P.2d 918, 921 (1975).