specially concurring in part and dissenting in part:
I would, as does the majority, affirm the district court on the issue of reimbursing the community, but would remand the issue of the validity of the adoption.
In Part I, the majority considers the validity of the adoption of one Michael Black-hawk Sheppard, purportedly adopted by the parties pursuant to a decree issued by the tribal court of the Shoshone-Bannoek tribes, dated October 27, 1971. George Sheppard alleged in his petition for a divorce in the magistrate court that only three children were born of the marriage. Roma Sheppard answered, alleging the existence of a fourth child, Michael, as a child of the marriage and asking for support for Michael. It was in this fashion that the question of the validity of the adoption decree issued in the tribal court was called into question. The magistrate court reviewed the provisions of the tribe’s law and order code and determined that the procedures provided therein were not correctly followed. The court found that the tribal court adoption proceedings were
“fatally deficient in at least the following particular:
“(1) Plaintiff’s signature on the petition was not acknowledged before a notary or a representative of the Court.
“(2) Plaintiff did not appear in Court for the adoption hearing and the judge conducted no separate examination or hearing as required by the Code.”
The district court, in an appellate review, reversed the magistrate court. In doing so, the district court ruled that the tribal court had both subject matter jurisdiction and personal jurisdiction over George Sheppard, saying:
“He [George Sheppard] initially petitioned the tribal court to act. Further, respondent did not object in any manner to the adoption decree until the present action was instituted. Objections to personal jurisdiction are deemed waived if not timely asserted. In addition, it appears from the transcript, pages 58 through 61, that respondent was aware of the Decree of Adoption; that he did not object thereto; that he treated the boy as his own; that he loved the boy and considered him his son and represented to others that the boy was his son. This Court does not feel that respondent can at this time attack the proceedings.”
The above statements made by the district court in its memorandum opinion on appeal were additional findings of fact not previously entered by the magistrate court.
Under Idaho law, a district court can hear appeals from the magistrate division *25either by way of appellate review or by way of a trial de novo. I.R.C.P. 83(j). However, the rule requires that the district judge make a specific order that the case is to be heard as a trial de novo before it can be so heard. See I.R.C.P. 83(j)(3)(D). The district court judge in the present case did not issue such an order. In fact, the plaintiff (George Sheppard) filed a motion in the district court to augment the transcript of the magistrate court. The district court denied the motion to augment, noting that under Idaho law the district court would have to act as a trial court in dealing with any augmented matters, saying, “This Court determines that it does not wish to act as a trial court for some purposes and an appellate court for others on appeals from the Magistrate’s Division and for this reason the Motion to Augment will be denied.” See Koester v. Koester, 99 Idaho 654, 586 P.2d 1370 (1978). Thus, the district court heard this case as an appellate review, not as a trial de novo, and thus was not entitled to make findings upon issues of fact not considered by the magistrate court. The district court erred in making additional findings of fact on the issue of personal jurisdiction. Thus, the case should be remanded to the magistrate court to make specific findings of fact on the issue of George Sheppard’s consent to the adoption. If George Sheppard did not consent, then the tribal court had no personal jurisdiction over him, and thus its decree can be collaterally attacked.1
On the issue of state court jurisdiction over Indian lands, I must also specially concur in affirming the district court decision. I specially concur without necessarily agreeing with or deciding the broad issues considered and decided by the majority opinion.
The magistrate court, in dividing the community property, awarded George Sheppard one-half of the amount of community funds invested in trust lands. In doing so, the magistrate acknowledged that he was forbidden from determining ownership of the trust lands under federal law. However, in order to conclude the divorce matter, it was necessary for the magistrate to determine the extent of the community property. It was in this regard that he noted that the consideration paid for the trust lands was community property. He then ruled that “[t]he Court then as a practical matter must divide the total purchase price consideration in half and award the one half in a matter of dollars and cents to the Plaintiff .... ”
This action of the magistrate can be characterized, not as an award to offset the value of property awarded to the other spouse, as forbidden in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), but as reimbursement for community funds expended in the acquisition of the trust property. As the majority points out:
“From the foregoing we conclude that the exceptions to state jurisdiction in 25 U.S.C. § 1322(b) and I.C. § 67-5103 do not prevent the courts of this state from requiring that one party to a marriage recompense the other party for his or her share of the community contributions that have gone into property that is held in trust or subject to a restraint on alienation by the federal government. Appellant remains the sole owner of the property. No ownership of the property, equitable or legal, is being adjudicated.” At p. 914.
I would affirm the district court’s decision on the reimbursement of community issue on the basis of the above quoted portion of the majority opinion, but cannot join the balance of Part III of the majority opinion which is unnecessarily expansive and discusses issues which are not necessary to the decision in the present case in light of the facts presented.