Thursday, August 24, 2006

Zander v. Zander -- Tribal Per Cap as Marital Property

In an interesting decision, the Minnesota Court of Appeals decided that per capita payments to a member of the Mdewakanton Sioux tribe are marital property under Minnesota law and must be distributed equally to a non-member spouse post-divorce, in this case, Husband.

The court wrote that the Mdewakanton Sioux Tribal Domestic Relations Code, which prohibits this kind of distribution, does not apply because Minnesota is a PL 280 state and the case was brought in Minnesota courts.

There might be a few weaknesses in the opinion:

First, the Minnesota statute suggests that property is not marital property if it was acquired before the marriage or is a gift, behest, devise or inheritance. Certainly, Minn. law doesn't take into consideration something like tribal per caps. Per caps would seem to be something like a gift or inheritance, since they come only because of someone's political and familial relationship to an Indian tribe. And that relationship exists before the marriage. Seems like a court could invoke either provision or create common law consistent with the state statute.

Second, it is unfortunate that the court so blithely decided that since Minn. is a PL280 state, state law applies and trumps the tribal law. PL280, as we should know by now, extends state civil jurisdiction to state courts for the purpose of providing a forum for tribal members where no tribal forum exists -- and state law where no tribal law exists. Here, there is a well-developed tribal law. Just because the parties (presumably) chose the state courts as their venue shouldn't mean that state law is an automatic trump. The purposes of PL280 aren't served by this automatic trump, one would think.

Finally, assuming the Minnesota Supreme Court upholds the decision, it would be interesting to see if Husband can recover the $42,000 per month the court held he is entitled to from Wife. The tribe's immune, so Husband can't recover there. Could Wife use a Cayman Island-style accounts to avoid paying the dough? She certainly could afford creative lawyers....

Regardless, the decision gives all per cap tribes something to think about, especially those in PL 280 states (read: California).


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