Jump to content

Order from tribal court


Guest Penelope
 Share

Recommended Posts

Guest Penelope

The 401(k) plan of a Native American tribe has received an order from a tribal court dividing a participant's interest in the plan. The QDRO rules require that an order be issued pursuant to state law, but the order sent to the tribal plan was issued pursuant to tribal law. Will the plan violate the anti-alienation rule of the Code and ERISA (assuming it applies) if it recognizes the alternate payee's interest under the order?

Link to comment
Share on other sites

Does this mean that the plan obtained the order, or that the plan was served with a copy of the order? You seem to imply the former, which would not be a proper QDRO in any event.

Did the tribal court apply state law, federal law or tribal law? Are tribal court decisions appealable to state or federal courts of appeal (or other)?

Whose rules of procedure are used in the tribal court? Do they have an interpleader statute?

Link to comment
Share on other sites

Guest Penelope

The plan was served with the order. The tribal court applies tribal law, not state or federal law. There is a tribal court of appeal--no appeal to any state or federal court. The tribal court has its own procedural rules; I don't know if tribal law provides for an interpleader proceedure.

Link to comment
Share on other sites

I attended law school in Arizona with students from various Indian tribes. One of my classmates is now a judge on the Navajo reservation.

I don't believe that tribal law is excluded from the law of the US. It is a legal system that is permitted by treaty between the tribe and the US. Rights may also be vindicated through Federal court. It is equivalent to state law in that once state rulings are issued, appeal to Federal courts is still possible.

I suggest that the plan has 2 choices: obtain opinion of counsel with respect to the purported QDRO, or file under an interpleader statute/rule for the court to determine the appropriate division of the funds. In either event, the plan will need appropriate representation.

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
 Share

×
×
  • Create New...