Modification of Trial Custody Decree in State Court

By Fred G. Zundel

Assume the following facts. John is an enrolled member of an Idaho Tribe. Jane is not a person of Native American descent and is not a member of any Tribe. The parties are the parents of two minor children. The children are enrolled members of John’s Tribe.

John and Jane were married in 2005 within the exterior boundaries of John’s Tribal Reservation and resided within the boundaries of the Reservation until their separation in 2015. Jane relocated to a home off the Reservation that was 30 miles from John’s home on the Reservation.  In January 2016, John filed for divorce in Tribal Court. John’s Petition dealt with all relevant matters pertaining to a divorce action, including custody, child support, and division of property and debts.

John and Jane signed, dated, and filed a settlement agreement for final resolution of all matters regarding their divorce action in Tribal Court. The parties agreed that jurisdiction was proper based on the Tribe’s Law and Order Code and thereby submitted to personal jurisdiction and subject matter jurisdiction within Tribal Court, including subject matter jurisdiction over child custody and child support. They agreed to joint legal custody and primary physical custody of the children for John with reasonable visitation rights for Jane.

Shortly thereafter, the Tribal Court issued its Decree of Divorce, which incorporated all of the terms and provisions of the settlement agreement.  The Tribal Court noted that pursuant to its Tribal Code, it could at any time modify the Decree.

Four years later, Jane filed a Petition for Modification in State Court in the county where she was living, which adjoined John’s Reservation. She requested that the Court award her primary physical custody of the children and modify child support accordingly. Pursuant to Idaho’s Uniform Child Custody Jurisdiction and Enforcement Act at Idaho Code § 32-11-209(a), Jane identified the court, case number, and date of the Tribal Court’s child custody determination and thereby alerted the State Court to the Tribal Court’s original jurisdiction of the divorce case and of potential jurisdictional issues regarding her modification case.

Shortly after being served with Jane’s Petition, John filed his own Motion to Modify in Tribal Court and requested that the Court keep in place the custody provisions in the Decree of Divorce but modify child support due to the changed employment of the parties. John and Jane each retained counsel to stay their respective cases until the jurisdictional issues could be resolved.

John and the two children have lived on the Reservation their entire lives. Jane had resided on the Reservation during their marriage but had moved off the Reservation shortly after the divorce. The children have been attending school and receiving medical services on the Reservation their entire lives.

The distance between the Tribal Court and the County Courthouse is approximately 30 miles. Virtually all of John’s witnesses that he would call reside on the Reservation, and virtually all of Jane’s witnesses reside off the Reservation but nearby.

John would argue that since the Tribal Court is aware of the history of the parties and the children, any modification issues could be expeditiously dealt with in Tribal Court, and that the Tribal Court would have the procedures in place necessary to present any evidence in that case. John believes that Tribal Court would be able to deal adequately with the issues raised in Jane’s Petition for Modification and in John’s Motion to Modify and that Jane’s State Cort should be dismissed. Jane would argue that State Court has subject matter jurisdiction to modify the Tribal Decree as to custody and child support and that she should be allowed to proceed in State Court.

Continuing, Exclusive Jurisdiction

Idaho’s Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) found at Idaho Code § 32-11-202(a) reads as follows:

  • Except as otherwise provided in section 32-11-204, Idaho Code, a court of this state which has made a child custody determination consistent with section 32-11-201 or 32-11-230, Idaho Code, has exclusive, continuing jurisdiction over the determination until:
  • A court of this state determines that neither the child, nor the child and one (1) parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training and personal relationships; or
  • A court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.
  • A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section 32-11-201, Idaho Code.

Idaho Code § 32-11-203 provides as follows:

  • Except as otherwise provided in section 32-11-204, Idaho Code [for temporary emergency jurisdiction], a court of this state may not modify a child custody determination made by a court of another state unless a court of this state had jurisdiction to make an initial determination under section 32-11-201(a)(1) or (2), Idaho Code, and
  • The court of the other state determines it no longer has exclusive, continuing jurisdiction under section 32-11-202, Idaho Code, or that a court of this state would be a more convenient forum under section 32-11-207, Idaho Code; or
  • A court of this state or a court of the other state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in the other state.

If John’s Tribe were a sister state within the United States, then the language of these two sections would conclusively support the claim that Tribal Court has exclusive, continuing jurisdiction over the parties’ tribal divorce action given the foregoing facts. A State Court would have no jurisdiction to modify the Tribal Court Decree. Although Jane has moved off the reservation, John and the children have continued to reside on the Reservation.

John and the children have a significant connection with the Reservation. Since John has been providing primary care for the children, there is substantial evidence available on the Reservation concerning the children’s care, protection, training, and personal relationships. To hold otherwise, the Tribal Court would have to determine it no longer has exclusive, continuing jurisdiction or that the State of Idaho would be a more convenient forum. Therefore, pursuant to the UCCJEA, the State of Idaho would have no jurisdiction to modify the Tribal Court Decree.

However, since no Idaho Tribe is a sister state, the issue becomes whether the provisions of the UCCJEA apply to the Tribal Court Decree.  In deciding on the final language of the UCCJEA, the Idaho legislature chose not to include the model language proposed by the National Conference of Commissioners on Uniform State Laws that would have provided that “[a] court of this State shall treat a tribe as if it were a State of the United States for the purpose of applying [Articles] 1 and 2.”

Section 104 (Application to Indian Tribes) of the Uniform  Child-Custody Jurisdiction and Enforcement Act (1997) was provided to each state for consideration in drafting their own state version of the UCCJEA[i]. Since the Idaho Legislature did not adopt this language, an Idaho State Court is not required to treat an Idaho Tribe as a sister state in applying Idaho’s UCCJEA modification provisions.

However, this does not mean that a state court cannot apply the public policy and purpose of the foregoing sections regarding continuing, exclusive jurisdiction and jurisdiction to modify in the instant case. Section 101 of the model Act recites the main purposes of the language proposed for each state’s UCCJEA as follows:

  • Avoid jurisdictional competition and conflict with courts of other States in matters of child custody which have in the past resulted in the shifting of children from State to State with harmful effects on their well-being;
  • Promote cooperation with the courts of other States to the end that a custody decree is rendered in that State which can best decide the case in the interest of the child;
  • Discourage the use of the interstate system for continuing controversies over child custody;
  • Deter abductions of children;
  • Avoid relitigation of custody decisions of other States in this State; 
  • Facilitate the enforcement of custody decrees of other States;[ii]

Since John has filed his own Motion to Modify in Tribal Court, allowing Jane to proceed with her state court modification action could cause jurisdictional competition and conflict with the Tribal Court and have a harmful effect on the well-being of the children. The Tribal Court is arguably in the best position to decide the best interest of the children. If the State Court were to proceed to a state modification decree and John were to proceed to a tribal modification decree, there would be competing modification decrees that could result in competing enforcement of these decrees.

Further, Idaho’s UCCJEA clearly favors the “home state” of a child in making child custody decisions.[iii] The “home state” of a child is that state where the child last lived for at least six consecutive months immediately before the commencement of a child custody proceeding. Although an Idaho Tribe is not regarded as a sister state, it is to be treated as an independent sovereign nation.

Since the children have always lived on the Reservation, the Reservation by analogy has always been the “home state” of the children, and the State of Idaho has never been the “home state” of the child. The public policy favoring the “home state” to resolve child custody matters would, therefore, favor the state court declining jurisdiction to modify the Tribal Court Decree and insisting that any modification take place on the Reservation.

Comity, Self-Government, and Exhaustion of Tribal Court Remedies

Although an Idaho Tribe is not to be regarded as a state for the purpose of applying the UCCJEA, it is important to note the recognized tribal sovereignty of an Idaho Tribe. “The history of tribal self-government forms the basis for the exercise of modern powers. Indian tribes have consistently been recognized, first by the European Nations and later by the United States, as single ‘distinct, independent political communities’,  qualified to exercise the power of self-government, not by virtue of any delegation of powers, but rather by reason of their original tribal sovereignty.”[iv]

“The tribes began their relationship with the federal government with the sovereign powers of independent nations. They came under the authority of the United States through treaties and agreements between tribes and the federal government and through the assertion of the authority by the United States. … But from the beginning, the United States permitted, then protected, continued internal tribal government. In doing so, the United States applied a general principle of international law to the particular situation of the Indians. The established tradition of tribal independence within a tribe’s territory has survived the admission of new states, citizenship of the Indians, and other changes in American life. Today courts consider the backdrop of tribal sovereignty in addressing federal Indian law issues.”[v]

Although in the early 1800’s the United State Supreme Court established the relationship between the federal government and the tribes as a guardian-ward relationship, that “did not abolish preexisting tribal powers or make the tribe dependent on federal law for their powers of self-government… Tribes remained states with powers of self-government, despite coming under federal power.”[vi] “Congressional legislation designed to establish cooperative programs with state and local governments has expressly included Indian tribes as participating governments…. Thus, Indian tribes are recognized by Congress as modern governments dealing with modern problems.”[vii]

“Most Indian nations operate their own court systems and, except to the extent demanded by the Indian Civil Rights Act, the structure and procedure of the courts may be determined by the tribes themselves…. Tribal courts’ jurisdiction to adjudicate matters arising in Indian counties is broad, encompassing all civil and criminal matters absent limitations imposed by lawful federal authority. In that sense, tribal courts are more like state courts of general jurisdiction than like federal courts.” [viii]

One accommodation to the relation between Tribal Courts and State Courts was Public Law 280.[ix] In 1953, Congress enacted this statute that delegated to initially five states and then to any other state the option of accepting jurisdiction over most crimes and many civil matters. With tribal consent, Idaho accepted jurisdiction over seven subject areas, including domestic relations, which is codified at Idaho Code § 67-5101-5103 et. seq.

“…, [T]he primary purpose of Public Law 280 was to improve law enforcement within Indian country, which suggests that Congress would not want to eliminate any functioning or potentially effective criminal jurisdiction. Federal policy since the passage of Public Law 208 has only reinforced this reading of congressional intent, as Congress has weighed in heavily in favor to tribal self-government and tribal court development.”[x]  “The consensus about concurrent tribal and state jurisdiction under Public Law 280 has developed relatively recently, leaving both sets of courts and law enforcement officers with the task of developing principles of coexistence and comity. In criminal cases, the Double Jeopardy Clauses of the Constitution and the Indian Civil Rights Act permits multiple prosecutions so long as the prosecutions are carried out by separate sovereigns. The Supreme Court has held that Indian nations are separate from the federal government for this purpose, and the same reasoning dictates that Indian nations are separate sovereigns from the state.”[xi]

“In civil cases, concurrent tribal and state jurisdiction under Public Law 280 leads to the possibility of each disputant racing to litigate in the forum of choice. Public Law 280 does not give state courts the power to restrict the exercise of tribal jurisdiction even when the first litigant to file chooses state court. If each sovereign is under some obligation to respect the judgments of the other, then the first forum to reach a judgment will determine the outcome, regardless of the duration or extent of completion of the parallel proceeding. If the sovereigns do not view themselves as under any compulsions to respect one another’s judgments, the litigants may be subjected to conflicting and mutually inconsistent orders.”[xii] The principle of comity would, therefore, urge a state to recognize and respect John’s modification action in Tribal Court over Jane’s action in State Court.”[xiii]

“Judge-made doctrine may also function to limit conflicts. One valuable source of guidance is the doctrine of exhaustion of tribal remedies that has been crafted by the Supreme Court for situations in which Indian nations and the United States share authority over the same matters. According to this doctrine of comity, federal courts will normally decline to invoke their federal question or diversity jurisdiction until the litigants have presented the issues and obtained a resolution from the tribal court system. Some legal issues, such as the extent of tribal jurisdiction, will remain for possible relitigation in federal court; even then, the federal court will grant some deference to the tribal court’s underlying findings of fact.”[xiv]

“ The federal exhaustion doctrine is designed to avoid interference with Indian nations’ self-government and to afford federal courts the benefits of tribal consideration of matters within the tribes’ realm of special expertise. Arguably, this doctrine embodies a federal common law of deference to tribal courts that binds state and federal courts. Even if the doctrine in not binding on state courts as a matter of federal common law, however, the same considerations of comity and efficiency that animate the federal exhaustion doctrine counsel in favor of state courts establishing an identical rule of deference.”[xv]

“A growing number of state courts have embraced such an exhaustion doctrine, requiring plaintiffs to bring their claims to tribal court even though the state may possess concurrent jurisdiction under Public law 280. Most of the state cases exemplifying this development have involved suits against tribal entities or officers, with attendant issues of sovereign immunity and privilege. Exhaustion in the name of respect for the tribal self-government is particularly appropriate in these cases. But just as the federal exhaustion doctrine has been applied to private lawsuits, so arguably should state exhaustion doctrine. Respect for an Indian nation’s power of self-government implies that the tribe should have primary responsibility for activities that occur within its boundaries, and therefore a state court possessing concurrent jurisdiction under Public Law 280 should stay its hand pending exhaustion of tribal remedies….Given the Indian law canons of construction, and the subsequent development of congressional policies favoring tribal self-determination and tribal courts, it is proper to read public law 280 as incorporating a state exhaustion requirement where tribal courts exist.”[xvi]

The Idaho Supreme Court has held that “tribal court judgments are entitled to recognition and enforcement under principles of comity.”[xvii] The policy of the Idaho judiciary is to maintain a “good working relationship between state and tribal courts.”[xviii] Although the Idaho Supreme Court has not expressly held that the doctrine of exhaustion of tribal remedies applies in Idaho, it should  arguably so hold under the foregoing facts because the requirement that a party exhaust tribal remedies is a logical counterpart to the doctrine of comity.[xix]

More Convenient Forum

Idaho’s UCCJEA at Idaho Code § 32-11-207 allows for a state court to decline to exercise its jurisdiction to modify if it finds that another forum is a more convenient forum for determination of child custody. Idaho Code § 31-11-207(b) sets forth the factors a court shall consider in doing so, such as: whether domestic violence has occurred, the length of time the child has resided out of state, the financial circumstances of the parties, any prior agreement regarding jurisdiction, the nature and location of evidence including testimony, the ability of each court to decide the issue expeditiously and procedures used, and the familiarity of each court with the facts and issues presented. A Tribal Law and Order Code may have a similar provision.

Moreover, the Tribal Court pursuant to its own Tribal Code may have a provision for continuing, exclusive jurisdiction, and therefore have exclusive jurisdiction to modify its prior Decree. If so, it would be for the Tribal Court to decide whether it is a more convenient forum than State Court.


There is a strong public policy that favors modifying the Tribal Court Decree in Tribal Court on John’s Reservation, where John and the children have always resided. The reservation is in effect “the home state” of the children. Although it is not required to do so, the State Court should regard the Tribal Court as having continuing, exclusive jurisdiction to modify John’s Decree of Divorce. Comity and a strong public policy of deference to tribal self-government and requiring Jane to exhaust her custody remedies in Tribal Court favor dismissing the State Court modification action of Jane and requiring her to pursue such a modification action in Tribal Court, where John has filed his modification action. Court decisions or legislative action may, in the future, provide more certainty regarding Idaho’s jurisdictional provisions and their application to Tribal Courts.

[i] Uniform Child Custody Jurisdiction and Enforcement Act (1997), National Conference of Commissioners on Uniform State Laws. Article 1 contains the General Provisions, and Article 2 pertains to Jurisdiction. Section 104

(Application to Indian Tribes) reads: “a) A child-custody proceeding that pertains to an Indian child as defined in the Indian Child Welfare Act, 25 U.S.C. §1901 et seq., is not subject to this [Act] to the extent that it is governed by the Indian Child Welfare Act. [(b) A court of this State shall treat a tribe as if it were a State of the United States for the purpose of applying [Articles] 1 and 2.] [(c) A child-custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of this [Act] must be recognized and enforced under [Article] 3.]” The Idaho Legislature only adopted subparagraph (a) of Section 104, which is now found at Idaho Code §32-11-104.

[ii] Id., [Article] 1, Section 101.

[iii] Idaho Code § 32-11-201.

[iv] Cohen’s Handbook of Federal Indian law (2005 edition, Lexis Nexis, Matthew Bender) at 205. The author has chosen to quote from Cohen’s Handbook more extensively than might seem called for because of the importance of tracing the orgin and development of tribal sovereignty in sufficient detail to underscore the policy position that author will advocate in this article.

[v] Id. at 206.

[vi] Id. at 208.

[vii] Id. at 211.

[viii] Id. at 217.

[ix] Act of Aug. 15, 1953, 67 Stat. 58 (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. §§ 1360, 1360 note).

[x] Cohen at 561.

[xi] Id. at 562.

[xii] Id. at 563-564.

[xiii] See Teague v. Bad River Band of the Lake Superior Chippewa Indians, 612 N.W. 2d 709720 (Wis. 2000). (when faced with conflicting tribal and state court judgments, the Wisconsin Supreme Court invoked the doctrine of comity  and found the State court should respect the tribal judgment).

[xiv] Cohen at 564.

[xv] Id. at 564-565.

[xvi] Id. at 565.

[xvii] Coeur d’ Alene Tribe v. Johnson, 162 Idaho 754, 759, 405 P.3d 12 (2017).

[xviii] See Sheppard v. Sheppard, 104 Idaho 1, 8, 655 P. 2d 895, 902 (1982); see also Idaho tribal-State Court Bench Book at 1(2014 ed). (

[xix] See Nat’l Farmers Union Ins. Companies v. Crow Tribe of Indians,  471 U.S. 845, 856-57 (1985) (“[P]olicy of supporting tribal self-government and self-determination…favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge.”); Strate v. A-1 Contractors, 520 U.S. 438, 56 (1997) (“[E]xhaustion requirement [is] a prudential rule based on comity.” (internal citations and punctuation omitted)).

Fred G. Zundel is an attorney in the Pocatello Office of Idaho Legal Aid Services. He received his law degree from the J. Reuben Clark Law School at Brigham Young University and his B.A. from the University of California at Davis. He is currently a member of the Bannock County Sexual Assault and Domestic Violence Task Force and serves as an at-large member of the Idaho State Bar’s Family Law Section. He is licensed to practice law on the Shoshone-Bannock Reservation.