Can Tribal Courts Issue Domestic Relations Orders that Will Be Honored by Pension Plan Administrators under ERISA?

Osiecki, Colin | January 1, 2014

Many members of tribal nations hold assets in pension plans governed by the Employee Retirement Income Security Act (ERISA). When a tribal member with such a plan divorces, the plan must be divided between the former spouses according to a marital-asset division order issued pursuant to state law. A 2011 Department of Labor Advisory Opinion opined that this order must be issued either by a state court or a tribal court in a state that recognizes such orders as state law. This Note argues that this Advisory Opinion is flawed. ERISA simply requires an application of a specific body of law; it says nothing restricting the forum to state courts. Many tribal judiciaries have available to them choice of law statutes, and the martial-asset division orders they issue pursuant to state law should be honored. This is a matter of convenience for the tribal member and a matter of a tribe’s sovereignty to order its own internal domestic relations as it sees fit.