# Amicus Brief for the United States — Lonewolf v. Lonewolf

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief for the United States
- **Published:** January 1, 1983
- **Citation:** 461 U.S. 924

## Text

IL

F ED
No. 82-1564 OCT 20 1983
In the Supreme Court of the United States

OCTOBER TERM, 1983

JOSEPH LONEWOLF, APPELLANT
v.

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.

\f)

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)

IV

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
v.
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)

2

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

E

bE

2
ri

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.

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.

5

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.

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

7

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).

8

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)).

it

9

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

10

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
we have located that arose out ©’ similar facts. There, the Idaho
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.

11

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

12

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).
See also 25 C.F.R. 11.28(a).

However, just as a Tribe has a compelling interest in
the regulation of the domestic relations of its members
who reside on the reservation, so too this Court has recog-
nized that a State has a paramount interest in the do-
mestic relations of a husband and wife within its borders.
See, e.g., Ridgway v. Ridgway, 454 U.S. 46, 54-55
(1981) ; McCarty v. McCarty, 453 U.S. 210, 220 (1981);
Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979);
Williams v. North Carolina, 317 U.S. 287, 298-299
(1942); In re Burrus, 136 U.S. 586, 593-594 (1890).
As a result, we believe that a state ordinarily would
have exclusive jurisdiction over the domestic relations
of two non-Indian spouses, even if they reside on an
Indian reservation and even with respect to the spouses’
real or personal property situated on the reservation.
Cf. McClanahan v. Arizona State Tax Comm'n, 411 U.S.
164, 168 (1973); Williams v. Lee, 358 U.S. at 220;
United States v. McBratney, 104 U.S. 621 (1881).

This case, of course, does not fit into either of the
categories just discussed, because it involves the dissolu-

to establish rules regarding membership and to govern the inheri-
tance of property. See Montana v. United States, 450 U.S. at 564;
United States v. Wheeler, 435 U.S. at 322 n.18; Santa Clara Pueblo
v. Martinez, 436 U.S. at 65.

13

cion of a marriage between an Indian and a non-Indian
who is not a member of the Tribe.'* In such a case,
where the spouses were domiciled on an Indian reserva-
tion within the State, the interests of both the Tribe and
the State are implicated (McClanahan v. Arizona State
Tax Comm'n, 411 U.S. at 179), especially if the non-
Indian spouse resides off the Indian reservation.'* This
Court has formulated principles in other settings for the
resolution of disputes involving Indians and non-Indians
in connection with matters arising on an Indian reserva-
tion, and those decisions furnish some guidance for re-
solving the jurisdictional issue here as well.

In its seminal decision in Williams v. Lee, 358 U.S.
217 (1959), the Court held that an Arizona state court
did not have jurisdiction over a suit brought by the
non-Indian owner of a store on the Navajo Indian Reser-
vation against a Navajo Indian and his wife to collect
the amount owed for goods sold to them on credit. The
suit instead had to be brought in the tribal court, which
had been granted jurisdiction over suits by outsiders
against Indian defendants. 358 U.S. at 222. The Court
concluded that the exercise of jurisdiction by the state
court in these circumstances “would undermine the au-
thority of the tribal courts over Reservation affairs and
hence would infringe on the right of the Indians to gov-
ern themselves.” Jd. at 223. See also Kennerly v. Dis-
trict Court, 400 U.S. 423 (1971); Fisher v. District
Court, 424 U.S. at 386. But while such suits against
Indians in state court are barred, this Court has made

Mrs. Lonewolf did not (and could not) become a member of
the Santa Clara Pueblo after her marriage to appellant. See Santa
Clara Pueblo v. Martinez, 436 U.S. at 52 & n.2. As a result, there
is no occasion here to consider whether a Tribe would have exclusive
jurisdiction over the divorce of an Indian and a non-Indian who
is a member of the Tribe. See 19 Op. Att'y Gen. 109 (1888); ef.
Nofire Vv. United States, 164 U.S. 657 (1897).

‘* As noted above (see page 2, supra), Mrs. Lonewolf appar-
ently moved off the Pueblo at some point after she and appellant
separated, but it is not clear when she did so.

14

clear that suits by Indians against non-Indians in state
court concerning matters arising on an Indian reserva-
tion do not impermissibly interfere with the right of the
Indians to make their own laws and be governed by them.
See McClanahan v. Arizona State Tax Comm'n, 411 U.S.
at 171, 173; Williams v. Lee, 358 U.S. at 219-220. See
also Felix v. Patrick, 145 U.S. 317, 332 (1892); United
States v. Candelaria, 271 U.S. 432, 444 (1926). See
generally U.S. Br. at 6-15, Three Affiliated Tribes of the
Fort Berthold Reservation v. Wold Engineering, P.C.
(No. 82-629, 1983 Term).

If these principles were to be applied rigidly in the
domestic relations setting, the result would be that a
state court would be wholly barred by federal law from
entertaining an action for divorce (or, as here, for legal
separation) brought by a non-Indian against an Indian
if the marital domicile was on the reservation. We do
not believe, however, that the holding in Williams v. Lee
requires a complete bar to the exercise by a state court
of jurisdiction in these circumstances. Rather, as we
explain below, drawing on principles of a “divisible” di-
vorce developed in this Court’s cases regarding the in-
terstate aspects of divorce, it is our view that a state
court has the authority to affect the marital status of
the non-Indian spouse by dissolving the marriage, but
does not have jurisdiction to order a division of the
property.

b. In Williams v. North Carolina, supra, the Court
held that “each state, by virtue of its command over its
domiciliaries and its large interest in the institution of
marriage, can alter within its own borders the marriage
status of the spouse domiciled there, even though the
other spouse is absent.” 317 U.S. at 298-299. This is
so even though the marital domicile of the couple was
in another State, and such a decree must be given full
faith and credit in the State of marital domicile. Jd. at
298-304, overruling Haddock v. Haddock, 201 U.S. 562
(1906). By analogy, in the area of state and tribal ju-
risdiction over domestic relations, a state court could

15

grant a divorce to the non-Indian spouse even if the
court would not ordinarily have jurisdiction over actions
brought against an Indian residing on the reservation
in connection with matters arising on the reservation.

This result is perhaps clearest where the non-Indian
spouse moved off the reservation and abandoned his or
her domicile there before suing for divorce, for then the
parallel to th. situction of a spouse moving to another
State would be complete. But we believe that the state
court could grant a divorce to the non-Indian spouse
even if he or she continued to reside on the reservation.
This Court has stressed that, absent a governing federal
statute, whether a State may exercise jurisdiction over
activities of a non-Indian on a reservation requires a
particularized inquiry into the relative interests at stake.
See, e.g., New Mexico v, Mescalero Apache Tribe, slip op.
9-11; Ramah Navajo School Board, Inc. v. Bureau of
Revenue, slip op. 4-7, 13-14; White Mountain Apache
Tribe v. Bracker, 448 U.S. 186, 144-145 (1980). The
interest of a State in the marital status of the non-Indian
spouse in these circumstances (see Williams v. North
Carolina, 317 U.S. at 298-299) would appear to be suffi-
cient to permit the state court to alter that status, even
though the Tribe, too, has an important interest in the
marital relationship by virtue of its authority over the
Indian spouse and the fact that the couple’s marital domi-
cile was on the reservation (cf. id. at 302-304).

It does not follow, however, that a state court also has
jurisdiction to order a division of property in these cir-
cumstances—at least where, as here, the property is sit-
uated on the reservation. In Estin v. Estin, 334 U.S.
541, 546-549 (1948), the Court held that a state court in
Nevada, in granting a divorce to a husband who be-
came domiciled there in proceedings against a wife who
was not served and did not appear, could not affect the
property rights of the absent spouse under a decree of
separation and alimony in New York. The result, the

16

Court observed, “is to make the divorce divisible’ and
thereby “accommodate[] the interests of both Nevada
and New York in this broken marriage by restricting
each State to the matters of her dominant concern.” 7d.
at 549. See also Vanderbilt v. Vanderbilt, 354 U.S. 416
(1957). In our view, the same principle governs here.

To be sure, in a divorce action by a non-Indian spouse
against an Indian spouse, the question as regards the
power of the state court to order a division of property
is not whether the court has personal jurisdiction over
the absent spouse, but whether the court has subject
matter jurisdiction over the action, insofar as the non-
Indian seeks a division of property, in light of the Indian
status of the other spouse. The policy considerations,
however, are quite similar, for where the marital domi-
cile was on the reservation and the property is located
there, the Tribe, not the State, would appear to have the
“dominant concern” '* in the disposition of the property.
Accordingly, drawing by analogy on Estin v. Estin and
Vanderbilt v. Vanderbilt, in a divorce proceeding filed by
a non-Indian against an Indian where the couple had
been domiciled on the reservation, the state court can-
not order a division of property situated on the reserva-
tion '*—at least where, as here, the tribal court would
have jurisdiction to order a division of that property."

15 Estin Vv. Estin, 384 U.S. at 649.

16 Because the only property remaining in issve in this case
(the pottery) concededly was created and located on the Pueblo,
there is no occasion to consider whether a state court could order
the division of property located off the reservation if the property
was closely related to the couple’s marriage and domicile on the
reservation or the Indian spouse’s activities there. Cf. Morton v.
Ruiz, 415 U.S. 199 (1974).

17 The then-Governor of the Santa Clara Pueblo testifiod that the
tribal court would have jurisdiction in a case such as this, but that
the Pueblo ordinarily would honor a request that the dispute be
submitted to state court (Tr. 40-41, 46-47; see also 25 C.F.R.
11.22).

17

This conclusion is strongly supported by Williams v. Lee,
in which the Court held that an action by a non-Indian
against an Indian to collect on a debt arising out of
matters on the reservation could not be brought in state
court but instead had to be brought in tribal court.

c. If the foregoing principles are applied to the in-
stant case, it is clear that the state court had jurisdic-
tion over Mrs. Lonewolf’s petition for legal separation
from Mr. Lonewolf * but not over her accompanying re-
quest for division of the couple’s community property
located on the Pueblo. This case is made somewhat more
complicated, however, by the fact that appellant counter-
claimed for divorce (J.S. App. 48). The Supreme Court
of New Mexico held that as a result of this counterclaim,
appellant had “submitted to the district court’s jurisdic-
tion” and “cannot now deny jurisdiction specifically as
to the pottery” (id. at 25). This conclusion was
erroneous.

As an initial matter, the question is not whether per-
sonal jurisdiction over appellant tag could be obtained
by his “submitting” to the court’s jurisdiction; the ques-
tion is whether the trial court had subject matter juris-
diction to award Mrs. Lonewolf a share of the value of
the pottery in view of appellant’s status as an Indian.
When appellant counterclaimed for divorce, he was essen-

18If the state court could alter the marital relationship by dis-
solving the marriage, we do not believe the court would be fore
clesed from granting a forma! separation, to the extent this simply
altered the status of tle parties. It is not clear, however, what inde
pendent significance such a decree would have under New Mexico
law.

1° The Supreme Court also held that appellant had submitted to
the jurisdiction of the trial court by entering into a stipulation for
the division of all items of personal property except the pottery
(J.S. App. 25). It appears, however, that this stipulation was
entered into only after the trial court held that it had jurisdiction
over all personal property. Accordingly, appellant’s entering into a
stipulation regarding the property cannot be viewed as a voluntary
submission to the trial court’s jurisdiction with respect to that

property.

18

tially in the position of an Indian plaintiff in a suit
against a non-Indian defendant, and this Court long has
recognized that such a suit is not inconsistent with the
federally protected sovereignty of the Tribe. But in his
counterclaim, appellant once again explicitly asserted that
the trial court did not have jurisdiction over property
on the Pueblo. In our view, the state trial court could
not, consistent with Williams v. Lee, exercise jurisdiction
over Mrs. Lonewolf’s request that it award her a portion
of on-reservation property in which appellant had an
interest simply because appellant filed a limited and
separate request that the trial court alter the couple’s
status. As explained above, this Court elsewhere has
recognized that a divorce appropriately may be regarded
as “divisible” into aspects relating to status and prop-
erty in order to accommodate the interests of separate
jurisdictions. New Mexico law reflects the same view:
it recognizes that the dissolution of a marriage and the
division of property are separate matters that need not
be accomplished in the same proceedings. N.M. Stat. Ann.
§ 40-4-3 (1978) (division of property may be granted
without dissolving the marriage) ; N.M. Stat. Ann. § 40-
4-20 (1978) (division of property may be accomplished
in a separate suit after dissolution of the marriage).
These principles apply equally here to the separate in-
terests of the Trite and the State.”

In holding that the state trial court had jurisdiction,
the New Mexico Supreme Court obse.-ved that rights to
personal property were not tied to lands within the reser-
vation and that Mrs. Lonewolf had a right under New
Mexico law to control and dispose of the community prop-

2° Appellant did request a division of the couple’s community
debts even though he objected to jurisdiction over on-reservation
property (J.S. App. 49), but the Supreme Court of New Mexico did
not rely on this fact in finding that the state court had jurisdic-
tion. In our view, the court properly could have declined to grant
appellant relief with regard to the community debts or other relief
beyond dissolution of the marriage if petitioner did not also re
quest a division of community property.

19

erty (see N.M. Stat. Ann. § 40-3-14 (1978)) that traveled
with her and therefore could be adjudicated in state
court. This reasoning also is flawed. The Court too
quickly assumed that New Mexico law would apply on
the reservation to confer on Mrs. Lonewolf a right to
control and dispose of the pottery. In our view, tribal,
not state, law would govern the rights of an Indian
and a non-Indian spouse domiciled on an Indian reserva-
tion in property located on the reservation—especially
where, as here, a non-Indian spouse asserts an interest
in property (the pottery) that concededly was created
by the Indian spouse on the reservation. Thus, a ref-
erence to the source of the governing law supports a
finding of tribal, not state, jurisdiction over the division
of the property in question. In this connection, we note
that under New Mexico law, as under the law of most
community property jurisdictions, the rights of spouses
domiciled in New Mexico to property acquired while the
spouses were domiciled in another State are governed by
the law of the other State. See Brenholdt v. Brenholdt,
94 N.M. 489, 612 P.2d 13800 (1980); Hughes v. Hughes,
91 N.M. 339, 573 P.2d 1194 (1978). There is no reason
for a different result when the couple was domiciled on
an Indian reservation.

8. Although it is our view that the Supreme Court of
New Mexico erred in holding that the state trial court
had jurisdiction to award Mrs. Lonewolf a share of the
value of the pottery made by appellant, we do not be-
lieve that plenary review should be granted here. Insofar
as we have been able to ascertain, the question of the
extent of state court jurisdiction over a dissolution of
the marriage between an Indian and non-Indian and ac-
companying division of property in the absence of an
assumption of jurisdiction by the State under Public
Law 280 has not been extensively considered by the
state courts or given rise to conflicting decisions. See
note 11, supra. Moreover, this case involves somewhat
unusual circumstances, because it was the Indian who

20

sought a divorce in state court as well as certain addi-
tional relief.*'

CONCLUSION

The appeal should be dismissed for lack of jurisdiction
under 28 U.S.C. 1257(2). Treating the papers whereon
the appeal is taken as a petition for a writ of certiorari,
the petition should be held and disposed of in light of this
Court’s decision in Three Affiliated Tribes of the Fort
Berthold Reservation v. Wold Engineering, P.C., No. 82-
629. In the alternative, the petition for a writ of cer-
tiorari should be denied.

Respectfully submitted.

REx E. LEE
Solicitor General

F. HENRY HABICHT, II
Acting Assistant Attorney General

KATHLEEN P. DEWEY
Attorney

OCTOBER 1983

21 In addition, on December 9, 1981, after this case was decided
by the trial court, the Santa Clara Tribal Code was amended in
several respects that, although somewhat unclear, might have an
impact on similar cases in the future. For example, Title X,
Section 23.2 of the new Code provides that the Tribal Court shall
have jurisdiction over the marriage, divorce and related matters
concerning members of the Santa Clara Pueblo and that a divorce
obtained in another jurisdiction shall be of no force in the Pueblo
if both parties were dc-aiciled on the Pueblo at the time it was
sought. It is unclear whether the latter provision is intended to
apply where, as here, one of the parties to a marriage is a non-
Indian. See also Title II, Section 22 (general jurisdictionai pro-
visions). We have lodged with the Clerk of this Court a copy of the
provisions of the Tribal Code that were furnished to us by counsel
for petitioner.

® ©. 8. covenant parmtine orice, 1903 419963 ©6120

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0665%3A3. Public record. Not legal advice.