In a case of first impression, the Eighth Circuit in Tix v. Tix, No. 24-3487 (8th Cir. Dec. 12, 2025) rejects Tribal Court jurisdiction over a nonmember spouse in a divorce case.
“In September 2008, Robert William Tix, a member of the Prairie Island Mdewakanton Dakota Indian Community (the ‘Community’), married Kristin Ann McGowan [‘McGowen’], a non-Indian, in Minneapolis, Minnesota. Over thirteen years later, on February 9, 2022, Tix and McGowan each filed for divorce in separate forums. Tix filed his petition for divorce in the Community Court (the ‘Tribal Court’) while McGowan filed her petition in Minnesota state court. Over McGowan’s objections, the divorce proceeded in the Tribal Court. After a four-day trial, the Tribal Court issued a divorce order that, in relevant part, dissolved the marriage, distributed the marital assets, and awarded joint custody over the parties’ three minor children, each of whom is an enrolled member of the Community.”
McGowen, after exhausting appeals in the tribal system, filed an action in the United States District Court for the District of Minnesota, seeking a declaration that the Tribal Court lacked subject matter and personal jurisdiction and an injunction to prevent enforcement of the divorce order. The district court, applying Montana v. United States, 450 U.S. 544 (1981), granted summary judgment to the tribal member, Tix. It held that the Tribal Court had jurisdiction over the divorce under the so-called “consensual relationship” exception. “A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members[.]” Id. at 565.
The Eighth Circuit reverses. “We are the first federal appellate court to confront whether a tribal court possessed subject matter jurisdiction over a divorce between a tribe member and nonmember spouse that resided outside the reservation during their marriage . . . . No federal statute or treaty specifically provides tribal courts with subject matter jurisdiction over divorce proceedings involving a nonmember spouse. Therefore, the Tribal Court’s subject matter jurisdiction must derive from the Community’s ‘retained or inherent sovereignty’ over nonmembers, the scope of which is governed by Montana and the Supreme Court’s subsequent tribal authority cases.”
For the consensual relationship exception to apply, “a nonmember’s regulated conduct must have a ‘sufficient nexus’ to the ‘consensual relationship’ such that the nonmember could anticipate tribal jurisdiction.” Under Eighth Circuit authority, moreover, the exception concerns “tribal self-government or controlling internal relations” and “arises out of and is intimately related to” a contract related to tribal lands or property. (The panel notes a circuit split: the Ninth Circuit places no comparable limitations on tribal court authority.)
Regardless of whether a marriage could be deemed as a “consensual relationship” under the exception in Montana (the law, the panel notes, is “not cut-and-dry”), the Eighth Circuit holds that the district court erred by not considering whether (1) tribal adjudication of the parties’ divorce was “necessary to protect tribal self-government and to control internal relations” or (2) the “marriage bore a sufficient relationship to tribal lands or property.”
“First, the parties’ marriage had no more than a de minimis relationship with Community lands or property. Unlike the analogous cases where courts have found tribal jurisdiction, the parties did not marry on the Community’s reservation or ever reside there . . . . Tix also does not suggest that the parties’ marital status was of legal significance to their occasional visits to the reservation, their children’s enrollment in the Community, or their reimbursement by the Community for their children’s educational expenses.”
“Second, the Tribal Court’s exercise of jurisdiction over the parties’ divorce was not ‘necessary to protect tribal self-government or to control internal relations’ . . . . For one, the parties’ divorce did not require the allocation of Community resources. The divorce order primarily addressed the division and distribution of non-Community assets, such as the parties’ bank account holdings, marital home, vehicles, and other personal property situated outside Community lands . . . . Nor does the record establish that the Community could incur an obligation to pay spousal obligations imposed by a non-tribal court.”
Studying the divorce decree here, “[t]he Tribal Court not only distributed McGowan’s non-tribal property, but also imposed restrictions on her conduct outside tribal lands that we doubt the Community could impose via legislation.”
“For instance, the order touches upon McGowan’s sleep arrangements for the two youngest children and regulates her speech around her children on topics such as the children’s ‘Native American/Dakota culture’ and Tix . . . . Tix supplies no authority for the proposition that the Community’s interest in the care of the parties’ children necessitated such invasive exercises of authority over their nonmember mother outside the reservation. We find such a need to be particularly implausible given the children have neither lived on Community lands nor been regular participants in tribal life. We also cannot square the purported necessity of tribal divorce adjudication in these circumstances with the conception of tribal sovereignty adopted by Congress in the Indian Child Welfare Act, which exempts divorces from its general mandate of tribal participation in matters involving the custody and care of Indian children.”
“Therefore, Tix has not met our requirements for establishing the Tribal Court’s jurisdiction over his divorce petition under the consensual relationship exception.”
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