concurring in part and dissenting in part.
I concur in Part I of the Court’s opinion which recites the history, and in Part II which accords tribal court judgments full faith and credit. I am unable to concur in the determination of the state court jurisdiction question, finding it difficult to join an opinion which at great length reviews almost every Indian law decision rendered on that question only to
“conclude that a review of the authorities, opinions of the Supreme Court, lower federal courts and our sister jurisdictions are of no assistance and present no circumstances from which we can analogize. Likewise, we find no guidance from Congressional legislation, nor from treaties. Hence, we are left to our own devices in attempting to discern and enunciate an appropriate policy.” (Emphasis added.)
On the contrary, certainly some assistance is at hand, and preferable to “appropriate policy,” which is clearly at odds with a host of United States Supreme Court decisions beginning with Justice Marshall’s seminal opinion in Worcester v. Georgia, 31 (5 Pet.) U.S. 515, 8 L.Ed. 483 (1832). Finding itself clothed with jurisdiction, not because of any basis in the law, but because of its determination that “[i]t is clear that the non-Indian party has no desire to submit himself to the jurisdiction of the tribal court for the resolution of this dispute,” the Court, putting precedent aside, determines that the non-Indian husband’s desire to avoid tribal court jurisdiction will control its resolution of the issue.1
I.
The starting and ending point for analysis should be the language of Public Law 280, which granted designated states the right to exercise limited jurisdiction over Indian reservations which they would otherwise not be entitled to exercise. Public Law 280 in pertinent part provides that:
“(b) [No grant of state court jurisdiction] in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, ... belonging to any Indian ... that is held in trust ... or is subject to a restriction against alienation ...; or shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein.” 25 U.S.C. § 1322(b) (emphasis added).
This law clearly and explicitly precludes states from adjudicating the ownership or right to possession of real or personal property held in trust or subject to a restriction against alienation. Pursuant to this grant of authority, the State of Idaho elected to assume jurisdiction over, inter alia, domestic relations matters. Idaho Code § 67-5101(F). But, this broad assumption of jurisdiction over domestic matters is expressly limited by the provisions of Public Law 280 as quoted above and by I.C. § 67-5103. In pertinent part, I.C. § 67-5103 gives recognition to the limitation in providing:
“Nothing in this act shall authorize the alienation, encumbrance, or taxation of any real or personal property, ... belonging to any Indian ... that is held in trust ... or is subject to a restriction against alienation ...; or shall confer jurisdiction upon the state to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such property or any interest therein; or shall *27deprive any Indian or any Indian tribe ... of any right, privilege, or immunity afforded under federal treaty, agreement, statute, or executive order with respect to Indian land grants, ... or the control, ... thereof.” (Emphasis added.)
This provision precludes state courts not only from adjudicating the ownership or right to possession of Indian trust property but also from depriving any Indian or Indian tribe of any right, privilege or immunity otherwise enjoyed with respect to Indian land grants.
II.
A. The Court holds that Roma Sheppard is precluded from urging on appeal that the house, which was built on trust property, and which is not on Roma Sheppard’s property but on her father’s, and which makes up most of the value of the household goods is trust property. The Court reasons thusly:
“The house is located on trust land held by appellant’s father. However, in the proceedings below, both parties treated it as severable from the land upon which it sits, and in their pleadings both parties alleged it to be community property.... Having taken such a stand, it is too late for appellant to now argue that the house is trust property .... ”
Philosophically the statement is sound as applied to parties litigating the nature of property which is not on the reservation. Generally, it is true that a party may not be heard to raise a new issue or theory on appeal. But, does that proposition apply to concerns of subject matter jurisdiction? I think not. An elementary rule of law is that subject matter jurisdiction may not be waived at the whim of the parties and such issue will be considered even for the first time on appeal — sometimes sua sponte. J. Cound, J. Friendenthal and A. Miller, Civil Procedure 21-22 (1968); Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 2 L.Ed. 229 (1804), Richardson v. Ruddy, 15 Idaho 488, 98 P. 842 (1908); Aram v. Edwards, 9 Idaho 333, 74 P. 961 (1903); I.R.C.P. 12(h)(3).
Touching again on the pertinent provisions of Public Law 280 that “[njothing . . . shall confer jurisdiction upon the State to adjudicate, in probate proceedings or otherwise, the ownership or right to possession of such [trust] property or any interest therein,” 25 U.S.C. § 1322(b) (emphasis added), state courts simply do not have jurisdiction to determine the ownership or right to possession of trust property. Contrary to the Court’s belief that there is no applicable case law, the United States Supreme Court has decided the question of the status of permanent improvements made on Indian trust property. The Supreme Court stated:
“Looking at the object to be accomplished by allotting Indian lands in severalty, it is evident that Congress expected that the lands so allotted would be improved and cultivated by the allottee. But that object would be defeated if the improvements could be assessed and sold for taxes. The improvements to which the question refers were of a permanent kind. While the title to the land remained in the United States, the permanent improvements could no more be sold for local taxes than could the land to which they belonged. Every reason that can be urged to show that the land was not subject to local taxation applies to the assessment and taxation of the permanent improvements.
“... The fact remains that the improvements here in question are essentially a part of the lands, and their use by the Indians is necessary to effectuate the policy of the United States.” United States v. Rickert, 188 U.S. 432, 442, 23 S.Ct. 478, 482, 47 L.Ed. 532 (1903) (emphasis added).
This rationale clearly applies to jurisdiction granted to the states by Public Law 280.2 *28Those policies and statutes which preclude a state from exercising jurisdiction over Indian trust lands cannot be readily divorced with respect to permanent improvements made thereon. One of the easily discernible purposes in denying states jurisdiction over trust lands is to protect Indians and Indian tribes from “local ill feeling [as] the people of the States where they are found are often their deadliest enemies.” United States v. Kagama, 118 U.S. 375, 384, 6 S.Ct. 1109, 1114, 30 L.Ed. 228 (1886). To believe that the Congress would protect Indian lands but not the very homes thereon in which the Indians abide is unacceptable. To so allow, in my view, makes way for undesirable “checkerboarding” with state courts having no jurisdiction to determine ownership of the underlying land nevertheless purporting to rule upon the ownership of the improvements thereon. Such “checkerboarding” of jurisdiction within a reservation has not met with judicial favor.3
B. With respect to the two parcels of grazing land, the Court, on the premise the magistrate only allowed recompense to the non-Indian husband for the community funds used to purchase the trust property, holds that no prohibited adjudication as to “ownership or right to possession” of the property has occurred. The majority comes to this conclusion not on the basis of the countless authorities cited (which I read as holding to the contrary) but rather on the basis that:
“Of most significance, however, is the fact that only one of the parties is Indian. It is clear that the non-Indian party has no desire to submit himself to the jurisdiction of the tribal court for the resolution of this dispute. We are cited to no authority indicating that under the present circumstances a non-Indian must submit himself to the jurisdiction of an Indian court merely and solely because he married an Indian.’’ (Emphasis added.)
The Court, so it may seem to the reader of its opinion, in effect, sees its resolution coming down to the nice question of racial preference. The non-Indian does not want to submit to tribal court jurisdiction, presumably because he feels he will not get a fair trial. The tribal court presumably will not give him a fair trial because he is a non-Indian; and this Court will not guide him to tribal court jurisdiction “merely and solely because he married an Indian.” The question of race is irrelevant. The issue is nothing more and nothing less than a question of jurisdiction. If a given forum has no jurisdiction over the res, that a party “would rather be in Philadelphia” is irrelevant.
The Court’s premise that this non-Indian should not be subjected to tribal court jurisdiction merely because he married an Indian is an erroneous conception of the law. It is the situs of the property and its trust nature which confers jurisdiction. In choosing to invest in property within the boundaries of a reservation, Mr. Sheppard submitted himself to tribal jurisdiction over controversies involving that property. Is it any different from his having married a Mexican national and in her name taken title to Mexican real property? I think not. Dispositive is not that he married an Indian, but that trust property within the reservation boundaries was acquired and title was taken in the name of Roma Sheppard.4 Distinguishing this situation from the Mexican example is the additional factor that here Congress has told state courts that they do not have jurisdiction to adjudicate with respect to such properties. The Congress has not purported to so declare with respect to property situate in Mexico.
The Court may be successful in dodging this jurisdictional issue by holding, as it does, that, merely recompensing George *29Sheppard for his share of the community funds used to purchase the trust property is not an “adjudication of property rights or interests therein.” I am much in doubt. In making this award, the magistrate court necessarily determined that both parties owned the property, but being precluded from adjudicating trust property, did not take it from the wife, yet at the same time awarded the husband a commensurate credit.5 Such amounts to an adjudication of or with respect to Indian trust property, and is forbidden.
In Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), the Supreme Court in determining whether an offset against federal railroad retirement benefits was permissible stated that “[t]he pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require non-recognition.” 439 U.S. at 583, 99 S.Ct. at 809 (emphasis added). The Court using this analysis held that an offsetting award under the state’s community property laws would upset the statutory balance struck by Congress and was therefore improper.
This holding was reaffirmed by the Supreme Court in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), in which it held that application of community property provisions to military retirement pay threatened grave harm to clear and substantial federal interests, and thus, federal law precluded state courts from dividing military nondisability retired pay pursuant to state community property laws.6
The federal interest in preserving tribal sovereignty free from state interference precludes state courts from making such a property distribution as was here done.
“ ‘[T]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history.’ Rice v. Olson, 324 U.S. 786, 789, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945). This policy was first articulated by this Court 141 years ago [by] Mr. Chief Justice Marshall [in] Worcester v. Georgia, 6 Pet. 515, 557, 8 L.Ed. 483 (1832).” McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 169, 93 S.Ct. 1257, 1260, 36 L.Ed.2d 129, 133 (1973).
The federal interest in controlling Indian affairs was acknowledged by this very Court in Boyer v. Shoshone-Bannock Tribes, 92 Idaho 257, 260, 441 P.2d 167, 170 (1968), where it stated:
“It has been long and widely held that Congress has exclusive and plenary power to legislate with reference to the various Indian tribes. ... Such exclusive federal jurisdiction is subject to no dimunition by the states in the absence of specific congressional grant of authority to the states to act ....
“As a corollary to federal sovereignty it is clear that state law has no force and effect, except as granted by federal law, *30within the territory of an Indian tribe in matters affecting Indians.” (Citations omitted.)
The federal interests in protecting tribal lands from state intrusion are such that states have been prohibited from treating with the Indians for the purchase, grant, lease, or other conveyance of Indian lands (Non-Intercourse Act, 25 U.S.C. § 177), from imposing taxes on income generated from reservation lands (McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973)), from applying zoning regulations to trust property (Santa Rosa Band of Indians v. Kings County, 532 F.2d 655 (9th Cir.1975)), from assessing personal property taxes within a reservation (Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976)), and from determining the rights to proceeds from oil leases on trust land (Ollestead v. Native Village of Tyonik, 560 P.2d 31 (Alaska 1977), cert. denied, 434 U.S. 938, 98 S.Ct. 426, 54 L.Ed.2d 297 (1977)). While the above authority is representative of the strong federal interest in protecting tribal lands from state intrusion, it is far from exhaustive. Just as there exists a strong federal interest in preserving intact employees’ military and railroad retirement benefits, so there is an even stronger interest in protecting the land base of the Indians free from state interference. Since application of state community property law conflicts with such federal interests, federal law preempts the area; state law may not be applied, directly or indirectly. Wissner v. Wissner, 338 U.S. 655, 70 S.Ct. 398, 94 L.Ed. 424 (1950).
C. Although I do agree that the cattle venture is not specific property held in trust or subject to a restriction against alienation, I cannot concur in the majority’s determination that the magistrate correctly applied Idaho community property law in allocating the property involved; suspect is the refusal to apply 25 U.S.C. § 181:
“No white man, not otherwise a member of any tribe of Indians, who may on and after August 9, 1888, marry an Indian woman, member of any Indian tribe in the United States, ... shall by such marriage acquire any right to any tribal property, privilege, or interest whatever to which any member of such tribe is entitled.” (Emphasis added.)
This provision would prevent George Sheppard from acquiring any rights to any privileges Roma Sheppard was entitled to by virtue of her tribal membership. As discussed infra, Roma Sheppard, by virtue of her tribal membership was entitled to apply for tribal loans. It is clear that only tribal members are eligible to receive tribal loans. By declaring that property purchased with tribal loans is community property and may be divided by the parties, the Court may be guilty of circumventing the terms of the statute. The Court reasons that because this statute was intended to protect against white men marrying Indian women for their “head-rights,” and, because “head-rights” are not here involved, the statute is inapplicable. Upon several readings of the statute, I fail to ferret out any language so restricting this statute’s applicability. To the contrary, the statute expressly applies whenever any “tribal property, privilege or interest whatever to which any member of such tribe is entitled,” is involved. An elementary rule of statutory construction, and one which the Court should not feel free to ignore at its pleasure, is that the clear and express language of a statute cannot be abrogated by statements made in congressional debates during the bill’s enactment. 2A Sutherland, Statutory Construction §§ 45.02, 46.04 (1973). If the law when enacted was intended to apply only to “head-rights”, limiting language to that effect should have been used rather than the all-encompassing language which the statute contains.
The Court also refuses to apply this provision based on its determination that the statute was only intended to prohibit white men from “acquiring any right in ‘tribal property, privilege or interest.’ ” Only by creative and selective reading is the Court thus able to distinguish tribal property from individually held trust property and thereby conclude that no tribal property is here involved. The Court might conclude *31otherwise were it to continue reading beyond the word “interest” and take into account the remainder of the sentence which goes on to add: “to which any member of such tribe is entitled.” It would seem that this language would not have been used if the prohibition was not intended to encompass individual as well as tribal property. The Court’s fragmented reading leads to an interpretation which flies in the face of the manifest intent of the Act — to prevent a non-Indian from reaping the benefits accorded tribal members by the expedient of marrying an Indian woman. The Court would constrain this Act’s application to involvement with tribal as opposed to individual trust property. As a matter of common sense, it would seem that if Congress had intended to protect only the tribe as opposed to its individual members, it would have so worded the Act. That Congress would protect the presumably stronger class over the weaker individual from avaricious non-Indians is extremely doubts ful. The very purpose in protecting trust property from falling into white ownership is defeated by such a limitation as the Court today imposes.7
It was established at trial that $14,000 of monies borrowed from Indian children and $23,000 obtained by Roma Sheppard as a loan from the Shoshone-Bannock tribal lending agency mainly financed the cattle operation. The Court concludes that her loan and the cattle obtained with the loan are community property because it determines that “[t]he lending agency’s action in requiring respondent’s [George Sheppard’s] security demonstrates that it chose not to rely on the separate credit of appellant [Roma Sheppard]. Since the loan was obtained on the credit of both parties, i.e., the community, it cannot have been appellant’s separate property.” This is difficult to comprehend. Although George Shep*32pard was required to sign the securing documents as Roma’s spouse, it was only Roma Sheppard’s tribal membership which provided entitlement to the loan,8 and as a foreigner to the tribe, can it be said that he was any more than an accommodation endorser? I would think not. Should George Sheppard be elevated to a co-ownership which is prohibited? Again I would think not. The cattle business venture centered around cattle purchased with funds obtained by an Indian, in her name, from an Indian lending agency, sustained by grass growing on Indian trust property, the titular ownership of which was vested in an Indian.
. The Court may be subconsciously indulging in the assumption that the tribal court is either incapable or unwilling to accord justice to this non-Indian. If so, it would be an inappropriate factor. Jurisdiction is not dependent upon the capabilities or integrity of a tribunal but wholly upon the lawful vesting of jurisdiction. The Indian Civil Rights Act, 25 U.S.C. § 1302 provides that:
“No Indian tribe in exercising powers of self-government shall
“(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law.” (Emphasis added.)
This provision grants those persons, non-Indian as well as Indian, the same protections as are afforded litigants in state and federal courts. Many of the foreign nations of the world with whom the citizens of this country carry on commerce have no such guarantee whatever.
. Trust property has more recently been defined as consisting of “all real property held in trust for tribes or individuals, the natural resources thereon, crops planted, income generated and lands purchased with such income as well as treaty protected rights.” Task Force One, American Indian Policy Review Commission, Report on Trust Responsibilities and the Federal Indian Relationship: Including Treaty Review 178 (Comm.Print.1976).
. The policy against checkerboarding of jurisdiction was relied on by the United States Supreme Court in Seymour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962), in determining that land opened to non-Indian ownership remained Indian country within the terms of 18 U.S.C. § 1151.
. An analogy can be made to a corporation which by “doing business” in a state thereby submits itself to the jurisdiction of that state’s courts.
. The Court declares that:
“[Tjhe State assertion of jurisdiction over this cause of action does not infringe upon tribal sovereignty. The tribal code introduced in evidence in this case expressly recognizes the concept of community property. Law and Order Code of the Shoshone-Bannock Tribe of Indians § 2.2 (1972). Thus, application of community property principles alone does not offend tribal sovereignty.”
Accepting, arguendo, that there is no offending of tribal sovereignty, the fact still remains that a state court is without jurisdiction. The fact that the tribe recognizes community property concepts does not mean that it necessarily recognizes the same community property concept as does Idaho or that it interprets its provisions in the same manner as do our courts. The majority’s analysis could be easily extended to allow state courts to adjudicate in any area in which tribes have adopted laws similar to our own. Such a result has never been contemplated by Congress and is on extremely tenuous ground.
. There may be some concern that the Court today may be taking comfort from its own recent precedent in Rice v. Rice, 103 Idaho 85, 645 P.2d 319 (1982), wherein it conceded the binding effect of McCarty, but nonetheless directed a second go-around on dividing the community property so as to arrive at a “just” division — notwithstanding that on the appeal there was no such proposition of readjustment involved or urged. 103 Idaho at 88, 645 P.2d at 323 (Bistline, J., dissenting on that particular point).
. The magistrate refused to apply 25 U.S.C. § 181 because he “concluded that Idaho law will be applied because this Federal statute has been ignored largely the last many years by the Courts, and since Congress gave the States concurrent jurisdiction over ‘domestic relations’ to give credence to Sec. 181 does in effect give the Indians preferential treatment and privileges — a result certainly not intended.” (Emphasis added.)
Exercising appellate review, the district court picked up and expanded on this theme. The court stated in its memorandum and order that:
“There is a presumption in Idaho law that property acquired during marriage is community property. Appellant argues, however, that certain federal laws overcome this presumption and prohibit respondent from acquiring an ownership interest in tribal trust property. Appellant cites 25 U.S.C. Sec. 194 and 25 U.S.C. Sec. 181 as his authorities. An initial reading of these sections would seem to sustain appellant’s position. However, one must note that these laws were passed, one in 1834 and the other in 1888 and in recent times have been basically ignored and I am satisfied, if challenged, would, under present day holdings, be a violation of the equal protection clause of the Federal Constitution. In order to be upheld, such discriminating laws must serve a compelling government interest and I am satisfied that these statutes would not survive such a test.” (Emphasis added.)
Justice Shepard, writing for the majority in turn also questions the constitutionality of this statute “in light of gender based equal rights protections.” Indians are not just a group of people who live in this country who happen to be of another race. They are a separate and distinct nation. One may not blindly apply the same rules of analysis in construing enactments for the benefit of Indians as one does statutes of general applicability. The Supreme Court in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), held that Indian employment preference statutes were not unconstitutionally discriminatory. The reasoning it used is particularly pertinent in this case.
“Resolution of the instant issue turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a ‘guardian-ward’ status, to legislate on behalf of federally recognized Indian tribes. The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself. Article 1, § 8, cl. 3, provides Congress with the power to ‘regulate Commerce * * * with the Indian Tribes,’ and thus, to this extent, singles Indians out as a proper subject for separate legislation. ...
"... As long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.” Id. at 552-55, 94 S.Ct. at 2483-85 (emphasis added).
. In a letter to George Sheppard the Acting Superintendent of the Bureau of Indian Affairs, Fort Hall Agency, stated that “You [George Sheppard] were not required to sign the loan application and subsequent renewals because you were not an enrolled member of the Shoshone-Bannock Tribes and eligible for loans, you were requested to execute all securing documents as the spouse.” Letter from Acting Superintendent Deward Uspot, Fort Hall Agency, Bureau of Indian Affairs to George Sheppard (November 10, 1977).