{1} Thеre are occasions, and this is one, when this Court can give no definitive answer to the increasingly complex jurisdictional disputes between state and tribal courts. Given its plenary authority over Indian matters, Congress could provide such answers, but it has not. We do our best to fill the void.
{2} In this case' — a divorce and custody dispute between an Indian father and a non-Indian mother whose children are enrolled members of the Pojoaque Pueblo — state and tribal courts have entered conflicting decrees. Regrettably, complete resolution of that conflict lies beyond our reach.
{3} What we can do, however, is conclude that the state court does have jurisdiction. The tribal court — given the importance of the Pueblo’s children to its culture and its future — likely has jurisdiction; and neither is exclusive of the other. As has long been the tradition in New Mexico, the state and tribal courts must share jurisdiction under principles of comity and work out their differences, guided by universally accepted principles of doing what is in the best interests of the children. See Fox v. Doak,
{4} The Court of Appeals held that the state court did not have jurisdiction, to some degree because this dispute arose on private fee land surrounded by the Pojoaque Pueblo, land characterized as “Indian country.” While we assume the fee land here is “Indian country,” consistent with our holding in State v. Romero,
BACKGROUND
{5} This case shares many of the same facts, and one of the same parties, as our opinion in Romero,
{6} Angelina Garcia married Matthew A. Gutierrez on October 17, 1998. The couple spent much, but not all, of their four years of married life on Pueblo of Pojoaque lands. When the couple lived off the Pueblo for a time, while Gutierrez attended the Southwestern Indian Polytechnic Institute in Albuquerque, they remained in New Mexico. Gutierrez (“Husband”) is an enrolled member of the Pojoaque Pueblo and Garcia (“Wife”) is not Indian. They have two children, both of whom are enrolled members of the Pueblo.
{7} After a series of domestic violence incidents in which Husband allegedly beat Wife, she decided to leave him. On August 25, 2002, she took the children and moved to her father’s house, which is on non-Indian-owned fee property within the exterior boundaries of the Pojoaque Pueblo. That same day, after Husband realized Wife had left, he went to her father’s house and repeatedly stabbed her. Husband’s subsequent criminal prosecution led to the Romero opinion.
{8} The day after the stabbing, the district court of Santa Fe County awarded Wife temporary custody of the children. On October 9, 2002, two months later, Wife filed a petition for dissolution of marriage, also in state district court. Twenty days later, Husband filed a parallel divorce action in Pojoaque tribal court and, shortly thereafter, filed a motion to dismiss in district court, asserting that the state district court lacked jurisdiction to hear the case. The district court denied Husband’s motion.
{9} It appears from the record that Wife never entered an appearance in tribal court,
{10} In September 2005, the district court entered a divorce decree, but has not entered a final custody determination. On January 11, 2006, it entered amended findings of fact and conclusions of law, concluding that it had subject matter jurisdiction over the dissolution of the marriage, as well as over issues of custody, child support, distribution of assets and debts, and attorney fees. The court entered a partial final order on January 19, 2006, adopting its findings of fact аnd conclusions of law. Husband initially appealed from this order.
{11} The Court of Appeals reversed the district court, concluding that only the tribal court had jurisdiction over the child-custody issue. Garcia v. Gutierrez,
DISCUSSION
District Court Jurisdiction
{12} The sole question before this Court is whether the state has jurisdiction over the child-custody dispute. We do not decide the parameters of tribal court jurisdiction over the same subject matter. One state statute and one federal statute govern our inquiry. We begin with the state statute, the Uniform Child-Custody Jurisdiction and Enforcement Act (“UCCJEA”), NMSA 1978, §§ 40-10A-101 to -403 (2001), because it is dispositive. We then turn to an analysis of the federal statute, the Parental Kidnapping Prevention Act (“PKPA”), 28 U.S.C. § 1738A (2000), which we determine does not by its own terms apply to this case. 1
UCCJEA
{13} State legislatures around the nation, including our own, have passed the UCCJEA to combat the problem of conflicting child-custody orders and an epidemic of forum-shopping by parents unsatisfied with child-custody decrees in their home states. All fifty states have passed versions of the UCCJEA or its similar predecessor, the Uniform Child-Custody Jurisdiction Act (“UC-CJA”). The statute sets up a two-tiered approach for determining what state has jurisdiction over child-custody matters. First, for purposes of the statute, it asks, which state is the “home state”? See § 40-10A-201(a)(l)-(4). If one state can be established as the “home state,” and a child-custody action is filed first in that state, any other states which have passed a similar statute must stay their proceedings, or decline to exercise jurisdiction. See § 40-10A-206. Once the “home state” reaches a final judgment, it has continuing jurisdiction, subject to several conditions. See § 40-10A-202(a)(l)-(2).
{14} If this first tier of analysis is exhausted with no state qualifying as the “home state” within the meaning of the UCCJEA, the analysis then shifts to the second tier. Here, a court is to ask whether the child and at least one parent have “significant connections” with either state. See § 40-10A-201(a)(2)(A). The first action filed in a state
Applicability to Tribes
{15} Before applying the UCCJEA to the facts of the present ease, we note an anomaly in the way the statute applies in our state. Specific language in the UCCJEA commands courts of this state to treat a tribe “as if it were a state of the United States” for purposes of the statute’s jurisdiction provisions. Section 40-10A-104(b). In other words, New Mexico district courts are bound to honor the decisions of tribal courts for continuing jurisdiction purposes, provided that the requirements of the UCCJEA have been met. This legislation, however, has no power to similarly bind the tribal courts, because unless the tribes have passed legislation similar to the UCCJEA, they are not subject to its commands. As for the similar PKPA, a federal statute, tribal courts in theory could be bound by its provisions and, therefore, be required to give full faith and credit to state-court judgments, because of Congress’s plenary power over the tribes. As we will explain below, however, the PKPA by its terms does not apply to tribes. For reasons set forth in detail below, we conclude that under the UCCJEA, the State has proper jurisdiction, but that jurisdiction is not exclusive of the tribe. But see Gerber v. Eastman,
Application to Present Facts
{16} The parties appear to agree that both New Mexico and Pojoaque Pueblo have “significant connections” within the meaning of the UCCJEA and that the state-court action was filed first. Therefore, under the UCCJEA New Mexico would have “significant connections” jurisdiction unless the Pueblo qualifies as the “home state” as defined by the Act. The dispute therefore reduces to the question of whether there is a “home state.”
{17} The UCCJEA defines a child’s “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding.” Section 40-10A-102(7). Under the Act, Indian tribes are expressly treated as states in determining “home state” status. Section 40-10A-104(b). A state has “home state” jurisdiction under the UCCJEA if (1) that state qualifies as the home state at the commencement of the action, or (2) if the state was the “home state” within the critical six-month period, but the child was removed, so long as one parent “continues to live” in the home state. Only the first type of “home state” jurisdiction is at issue here. The district court found, and the parties do not dispute, that Husband did not continue to live on Pojoaque Pueblo lands after Wife took the children to her father’s fee land. 2 He was in jail for part of that time, and did not live again on Pueblo lands until more than two years after the stabbing incident. 3
{18} Turning to the first type of home-state jurisdiction — six continuous months in a single jurisdiction, immediately before the action is filed — Wife agrees that New Mexico does not qualify as the “home state” for purposes of the UCCJEA, because it is clear that the children resided on the Pojoaque Pueblo for a significant portion of the critical six-month period. Therefore, our inquiry focuses on whether Pojoaque Pueblo
{19} The “home state” question, in turn, revolves around the status of the fee land owned by Wife’s father. If this non-Indian fee property qualifies as Pojoaque Pueblo territory for purposes of civil jurisdiction, then the Pueblo has “home-state” jurisdiction, because the children spent the six months prior to the filing of the district court divorce action in what the UCCJEA would characterize as the “home state” of the Pojoaque Pueblo. If, however, the fee land is not Pueblo territory, the district court properly exercised “significant connections” jurisdiction, because Wife and the children would have spent only about four-and-a-half-months of the UCCJEA’s critical six-month period within the Pojoaque Pueblo.
{20} The district court concluded there was no “home state” within the meaning of the UCCJEA because “neither parent lived with the children in any state (or tribal jurisdiction) for at least six consecutive months immediately before the commencement of this child-custody proceeding.” The district court concluded that, because the children had no “home state,” it could exercise “significant connections” jurisdiction under Section 40-10A-201(a)(2)(A).
{21} In reversing the district court, the Court of Appeals concluded that the disputed fee land qualified as Pojoaque Pueblo territory. The Court concluded that the six weeks the children spent on the fee land constituted time on the Pueblo, thereby making Pojoaque the “home state” within the meaning of the UCCJEA. Garcia,
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
Id.
{22} The pertinent subsection here is Section 1151(b). We acknowledge that there is probably some room for debate whether Section 1151(a) also applies to pueblos, but we need not venture into that argument because we affirm Romero, which relied on Section 1151(b). See Romero,
{23} Citing Romero, the Court of Appeals in this case concluded that Section 1151 applies in civil cases, and more specifically to the case at bar. Garcia,
{25} Broad assertions that Section 1151 applies in all civil contexts, however, cannot be squared with what the U.S. Supreme Court has held in a line of cases starting with Montana v. United States,
{26} Strangely, the Montana cases largely fail to address the applicability of Section 1151. As we explain below, this silence amounts to a rejection of the Section 1151 paradigm in a specific type of civil case like the one before us now — which renders the Section 1151 “Indian country” concept largеly irrelevant here. We therefore reject the assertion of Husband and of the Court of Appeals that the fee land at issue here is part of the Pojoaque Pueblo for purposes of the UCCJEA simply because it is “Indian country.” In fact, we assume that it is “Indian country.” But that designation, the Montana cases teach, is inoperative in this particular type of civil case, where tribal civil jurisdiction over a non-Indian on non-Indian fee land is at issue. 4 As a result, we are compelled to conclude that the fee land in this case cannot be considered Pojoaque territory for purposes of determining a “home state” under the UCCJEA.
The Montana Cases
{27} In Montana, the U.S. Supreme Court held that the Crow tribe lacked authority to regulate the hunting and fishing of non-Indians on non-Indian fee land located within tribal boundaries.
{28} The U.S. Supreme Court recently reaffirmed the proposition, initially stated in Atkinson Trading Co.,
{29} Only one of the Montana cases directly addresses whether Section 1151 “Indian country” applies in cases like ours, where Indian civil authority over a non-Indian on non-Indian fee land is at issue. In Atkinson Trading Co., the Court held that the Navajo Nation lacked civil authority to tax a private hotel which was owned by a non-Indian and was located within the exterior boundaries of the Navajo Nation.
{30} Elsewhere, the Montana cases mention Section 1151 only in passing, if at all. See, e.g., Strate,
{31} The reason is that, if the U.S. Supreme Court had applied Section 1151 to the Montana cases ■ in the way in which our Court of Appeals believed it should be applied here, the U.S. Supreme Court would have had to conсlude, in each of the Montana cases discussed above, that the tribes had exclusive civil authority. In each case, the U.S. Supreme Court concluded the opposite, of course. The problem with our Court of Appeals’ analysis emerges upon a step-by-step analysis of that Court’s reasoning.
{32} The logic our Court of Appeals followed was (1) non-Indian fee land surrounded by tribal land is “Indian country,” and (2) “Indian country” connotes tribal jurisdiction in both civil and criminal matters, and (3) the tribe must therefore have exclusive jurisdiction here. The Montana cases make clear that this analysis is too simplistic. In each case except Venetie, the Court analyzed non-Indian fee land surrounded by tribal land and concluded that the tribe had no exclusive jurisdiction, at least as far as non-Indians were concerned. Although our case addresses state jurisdiction, not tribal jurisdiction, the Montana cases nonetheless show that it is not enough merely to conclude that a certain plot of land is, or is not, “Indian country.” Courts must also consider whether the parties involved are tribal members or not, and the type of ease at issue. Where tribal jurisdiction over non-Indians on non-Indian fee land is concerned, the Supreme Court has made clear, at the very least, that exclusive tribal jurisdiction is problematic, even though such land may well qualify as “Indian country.”
{33} Following the U.S. Supreme Court’s lead, as we must, we conclude that while the fee land at issue is “Indian country,” consistent with our holding in Romero, the “Indian country” paradigm cannot, and does not, answer the narrow question here: whether the fee land can be considered part of the Pojoaque Pueblo solely for the purposes of the UCCJEA’s “home-state” jurisdiction. The Montana cases strongly suggest that the fee land here cannot be so considered. In cases with substantially similar facts, the Supreme Court has essentially concluded that such fee land is not within tribal authority with respect to non-Indians. We note, and explain in detail below, that state jurisdiction here does not exclude tribal jurisdiction. Rather, comity allows and encourages both courts to exercise jurisdiction. In coming to our conclusion, we emphasize that we are determining the nature of this fee land only for UCCJEA purposes, and only on the facts of this case. Different facts might produce different results.
{34} In sum, contrary to our Court of Appeals, we find no authority in federal Indian law or in recognized principles of tribal sovereignty that would give thе Pojoaque Pueblo tribal court exclusive civil jurisdiction over this child-custody matter, such that it would displace concurrent jurisdiction with state courts. We next look to New Mexico statutory law — the UCCJEA — to see whether our Legislature has directed these parties to one forum or the other.
Home State Status Under the UCCJEA
{35} The UCCJEA amounts to a decision by our Legislature to cede common-law jurisdiction
{36} We first observe that where Congress has desired to incorporate the Section 1151 “Indian country” definition into civil jurisdiction statutes, to specifically indicate that non-Indian fee land may qualify as Indian land, it has done so explicitly. See Montana,
{37} Like Congress, our Legislature has also used the term “Indian country” to define the scope of Indian lands. See, e.g., NMSA 1978, § 27-2B-6(F)(2) (2007) (incorporating federal Social Security Act definition of “Indian country” for purposes of New Mexico Works Act); NMSA 1978, § 6-28-4(A) (2006) (Indian Capital Outlay); NMSA 1978, § 11-13-1 (1997, as amended) (incorporating “Indian country” for criminal jurisdiction for purposes of Indian Gaming Compact, 2007 Joint Resolution). It is clear that where Congress or our Legislature wishes to use the “Indian country” paradigm, they do so. Using common-law canons of statutory construction, we may conclude that where the Legislature did not include such a definition, it intended to exclude it. See Boudette v. Barnette,
History of the Fee Land
{38} The history and nature of the fee land here further aids our inquiry into how this land should be classified for purposes of UCCJEA “home-state” jurisdiction. First, the record discloses that Wife’s father pays property taxes to Santa Fe County. It is axiomatic in Indian law that state taxation of Indian lands is limited. See Okla. Tax Comm’n v. Chickasaw Nation,
{39} Second, the land’s history, which we summarize below, tells us that for many years, and for many purposes, it was considered neither Pueblo nor federal land, but rather private land subject to state taxation. Although the record before us now is largely silent about the fee land’s history, we are confident based on this Court’s treatment of the same land in Romero,
{40} The U.S. Supreme Court’s 1913 decision in United States v. Sandoval,
{41} A decision by the Board to grant title of formerly Pueblo land to a non-Indian had “the effect of a deed of quitclaim as against the United States and said Indians.” An Act To quiet the title lands within Pueblo Indian land grants, and for other purposes. Pub.L. No. 253, 43 Stat. 637 (1924). This extinguishment of Pueblo title is important in determining the nature of non-Indian fee land within the boundaries of a Pueblo. Pri- or to the enactment of Section 1151 in 1948, “Indian lands were judicially defined to include only those lands in which the Indians held some form of property interest____” Solem v. Bartlett,
{42} Our Court of Appeals noted many of these same cases, and undertook a similar analysis, in its opinion in Romero,
{43} We agree with that conclusion. We do note, however, that in the context of today’s opinion — a civil action — the PLA title determinations carry greater weight than in a criminal context, in part, because the concerns which accompany “checkerboarding” of title in a criminal context may not be as pivotal in a civil matter. In Seymour v. Superintendent of Washington State Penitentiary,
{44} The fee land in question here, as part of the body of land confirmed as private land by the Pueblo Lands Board, would have been subject to the foregoing legal principles about the extinguishment of Pueblo and federal title. We recognize that times, as well as the law, have changed for the better during the last 85 years, but we find it persuasive that the provenance of this fee land suggests it was understood, for many years, to be non-Pueblo land' — not for criminal jurisdiction over tribal members as Congress and this Court have made clear — but in other contexts, and at least in the narrow set of civil jurisdiction circumstances outlined in the Montana line of cases. 7
{45} In sum, the text of the UCCJEA, combined with the Montana cases and the history of the non-Pueblo fee lands and the PLA, compels a conclusion that the non-Indian fee land in this case cannot be considered part of the Pueblo under the UCCJEA and under these facts. This conclusion is in keeping with the U.S. Supreme Court’s evolving notion of what constitutes tribal land for purposes of civil jurisdictional authority, which, as we have seen, is highly situation-dependent.
{46} As a sort of coda to our analysis, we note that our conclusion finds further support in the written opinion of the Pojoaque Pueblo court. In its “Final Decree of Child Custody, Support and Visitation,” the court described Wife’s removal of the children to her father’s house as taking the children “off Pueblo lands,” strongly suggesting that the Pueblo itself, or at least the Pueblo court, does not consider the fee land to be Indian territory. The court reiterated this position two paragraphs later, describing Wife’s removal to her father’s property as taking the children “off tribal lands.” Further, the court asserted jurisdiction over the child-custody, support, and visitation matters “based on the parties’ significant connections to this forum.” While the court did not cite to either the PKPA or the UCCJEA in its decree, and we therefore cannot be certain that it intentionally adopted the language of those statutes, it appears that the court may have been conceding that it did not have “home-state” jurisdiction, but rather relied on “significant connections” jurisdiction, as does the state court.
Williams v. Lee Infringement
{47} Repeatedly, we have recognized the “infringement test” developed from Williams v. Lee,
Tempest Recovery Servs., Inc. v. Belone
{48} In reaching its conclusion that the tribal court had exclusive jurisdiction over the child-custody issue, the Court of Appeals relied on this Court’s opinion in Belone,
{49} In Belone, we concluded that a Navajo tribal court and a New Mexico district court sharеd concurrent jurisdiction over an auto repossession action, where the automobile was repossessed from an Indian allotment outside the boundaries of the Navajo reservation.
Parental Kidnapping Prevention Act
{50} In analyzing the applicability of the PKPA to the present ease, we first note a fundamental difference between the federal statute and the UCCJEA. While the UCCJEA is a state enactment which is not binding on tribal courts, the PKPA would apply to tribes if Congress intended it to do so, because of Congress’s plenary power over the tribes. See S.D. v. Yankton Sioux Tribe,
{51} The PKPA applies virtually the same analytical framework as the UCCJEA. It sets up the same two-tiered analysis for determining jurisdictional priorities in child-custody cases. See § 1738A(c)(l) and (2). There is, however, one distinction between the UCCJEA and the PKPA which is significant here. Unlike the UCCJEA, the PKPA does not explicitly define Indian tribes as “states” for purposes of interstate full faith and credit. If the PKPA does not treat tribes as “states,” then the conclusions of tribal courts need not be given full faith and credit by state courts. The converse is also true. If tribes are not “states,” then they have no duty under the PKPA to give full faith and credit to state-court judgments. For reasons described in the following section, we determine that the PKPA does not apply to tribes, and therefore, has no application in this ease. Neither the district court nor the tribal court were required to give one another full faith and credit under the terms of the PKPA.
{52} Courts are divided over whether the PKPA and similar full faith and credit legislation intend to treat Indian tribes the same as “states.” Some jurisdictions have held that tribes should be treated as “states” under the PKPA and similar statutes. See In re Larch,
{53} In evaluating the PKPA, as with any statute, we first look to the plain text, and if we discern ambiguity there, we then engage in the act of statutory interpretation. See State ex rel. Helman v. Gallegos,
{54} The argument that Congress implicitly intended the PEPA to be applied to tribes, as a matter of background principles, would be stronger if not for the multiple statutes very similar to the PEPA which, on their plain terms, apply to the tribes. See 25 U.S.C. § 1725(g) (judicial proceedings of the Passamaquoddy Tribe, Penobscot Nation, and State of Maine); § 1738(B) (child support orders); 18 U.S.C. § 2265(a) (2000) (Violence Against Women Act); 25 U.S.C. § 1911(d) (2000) (Indian Child Welfare Act). The explicit inclusion of tribes in these statutes strongly suggests that Congress not only considers it necessary to specify when legislation is meant to apply to tribes, but also that Congress is capable of doing so when it desires. The most telling example is Section 1738(B), which immediately follows the PEPA in the United States Code. Section 1738(B) mandates full faith and credit between “states” for child-support orders, and it defines “state” as “a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the territories and possessions of the United States, and Indian country (as defined in section 1151 of title 18).” 28 U.S.C. § 1738(B) (emphasis added). The PEPA employs a virtually identical definition of “state,” except that it does not include the phrase “and Indian country.”
{55} We also observe the fundamental principle of Indian law that tribes retain “all inherent attributes of sovereignty that have not been divested by the Federal Government,” and that “the proper inference from silence ... is that the sovereign power ... remains intact.” Merrion v. Jicarilla Apache Tribe,
“Territories” as Used in the PEPA Does Not Refer to Tribes
{56} Another argument sometimes made for applying the PEPA and other full faith and credit measures to the tribes is that the word “territories” in the Act is meant to refer to tribes. See Eberhard, 24 Indian L. Rptr. at 6059; Sheppard v. Sheppard,
{57} The Eighth Circuit’s 19th century views notwithstanding, the view of tribes as “territories” for the purposes of full faith and credit statutes appears to have fallen out of favor with most contemporary courts. See Canby, supra, at 228 (“Despite some argument over the matter, it is probable that
{58} Furthermore, we note that reading “territories” to mean “tribes” would render superfluous the explicit inclusion of “Indian tribes” in Section 1738(b) and other statutes that on their terms apply to “territories” and also to “tribes.” This Court has in the past noted that we will not interpret statutes so that terms are rendered mere surplusage. See State v. Javier M.,
Jim v. CIT Fin. Servs. Corp.
{59} One case often cited for the proposition that Indian tribes qualify as “territories” for the purposes of full faith and credit is Jim v. CIT Fin. Services Corp.,
{60} In sum, we are persuaded by the growing chorus of cases holding that tribes are not “states” for full faith and credit purposes unless Congress explicitly designates them as such, and that tribes are not “territories or possessions” within the meaning of the PKPA. As a result, in the absence of further congressional action in this area,
{61} The conclusion that the PKPA does not apply here does not alter our result. Because the UCCJEA clearly applies to the New Mexico court, and the New Mexico court clearly has “significant connections” jurisdiction, we hold that the district court properly exercised jurisdiction over the child-custody matter in this case.
Tribal-State Comity
{62} Where does this leave the question of tribal jurisdiction? We are unable, in the absence of congressional guidance, to make any final determination as to that issue. It is not for us as a state court to say whether the Pojoaque Pueblo, subject to the plenary power of Congress, has jurisdiction. We do note, however, the strong congressional expression in favor of tribal self-determination as to the upbringing of tribal children — a policy that is particularly important here, where both children are enrolled members of the Pojoaque Pueblo. See 25 U.S.C. § 1901(3) (“[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”); Miss. Band of Choctaw Indians v. Holyfield,
{63} For purposes of resolving the case before us, the district court on remand should assume that the tribal court has jurisdiction, as we hope and assume that the tribal court will treat the district court’s exercise of jurisdiction as proper. In short, the courts should treat tribal and state-court jurisdiction over this child-custody matter as concurrent — a concept that is not unfamiliar in New Mexico law. See State Sec., Inc. v. Anderson,
{64} We acknowledge that concurrent jurisdiction runs counter to the purpose of both the UCCJEA and the PKPA, but for the reasons explained above, neither of those statutes can bind the tribal court in this case to give full faith and crеdit to the state court’s exercise of jurisdiction. We also recognize that concurrent jurisdiction could potentially result in conflicting orders emanating from tribal and state courts. This does not mean, however, that the tribes and the state cannot defer to one another. Quite to the contrary, we have always encouraged tribal courts and state courts to liberally apply principles of comity so as to avoid unnecessarily conflicting judgments and to promote efficiency and justice. New Mexico recognizes the following broad principles of the doctrine of comity:
[S]tate courts recognize foreign judgments where the proceedings on which the judgment is based are not contrary to the public policy of the forum, where the judgment sought to be recognized was rendered under circumstances wherein the foreign court had jurisdiction over the subject matter and the parties, and where the parties were given an opportunity for a full and fair hearing on the issues.
Watson v. Blakely,
{65} Our state has a long and laudable tradition of comity between state and tribal courts, particularly where the upbringing and
{66} Comity “is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other.” Hilton v. Guyot,
{67} We suspect that in the end there may be no conflict of substance between the courts. However, as a cautionary note, we emphasize that the interests of comity do not outweigh the district court’s independent obligation to consider the child’s best interests in coming to a custody determination. See NMSA 1978, § 40-4-9(a) (1977) (providing that the district court must “determine custody in accordance with the best interests of the child”). If the two courts cannot reach consensus, the district court has its own duty to perform; it must adjudicate the dispute.
CONCLUSION
{68} We reverse the Court of Appeals and remand to the district court for further proceedings consistent with this opinion.
{69} IT IS SO ORDERED.
Notes
. The parties correctly agree that the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1923 (2000) does not apply to child-custody proceedings stemming from divorces.
. We note, without deciding, that if Husband had continued to live on Pojoaque Pueblo lands, and Wife had filed in district court as she did, before being outside the Pueblo for six full months, a good argument could be made that the Pueblo would have home-state jurisdiction under the second, or "recent home-state jurisdiction," category. However, we also note, again without deciding, that once Wife had been outside the Pueblo for six months with the child, a good argument could be made that New Mexico would achieve home-state jurisdiction if Wife filed after the six-month period concluded, regardless of whether Husband had stayed on the Pueblo or not.
. We interpret "continues to live” by its plain meaning, and not as a synonym for "residency” or "domicile” — both terms which carry legal meaning different from merely living in a location.
. If Wife were Indian, the outcome would likely be different, because a tribe's civil jurisdiction over tribal members is unchallenged by the Montana line of cases.
. The Montana cases acknowledge three narrow exceptions to the general rule against tribal jurisdiction over non-Indians in cases arising on non-Indian fee land. First, a federal statute or constitutional provision may provide tribal jurisdiction. Second, “[a] tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” Montana,
. One recent U.S. Supreme Court case on Indian civil jurisdiction which addresses Section 1151 at some length is Venetie,
. Judge Sulin, dissenting from the Court of Appeals opinion in Romero, mounted a crisp and persuasive argument against that Court's conclusion that the PLA's treatment of non-Indian lands was dispositive of tribal criminal jurisdiction on those lands.
. The Violence Against Women Act, 18 U.S.C. §§ 2265-2266 (2000), contains a full faith and credit provision which mandates that all states, tribes, and territories enforce one another's orders of protection. In New Mexico, the Tribal-State Judicial Consortium has adopted a standard front page for protection orders that will aid the enforcement of protection orders across jurisdictions.
. At least one New Mexico opinion, by the Court of Appeals, has directly cited Jim for the proposition that the Navajo Nation code is entitled to full faith and credit under 28 U.S.C. § 1738 because the Navajo Nation is a "territoiy” within meaning of the statute. Halwood v. Cowboy Auto Sales, Inc.,
. Two members of this Court, Justices Serna and Maes, have served at different times for many years on the Consortium.