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John v. Baker (9/8/99) sp-5174
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ANITA JOHN, )
) Supreme Court No. S-8099
Appellant, )
) Superior Court No.
v. ) 4FA-95-03103 CI
)
JOHN BAKER, ) O P I N I O N
)
Appellee. ) [No. 5174 - September 8, 1999]
______________________________)
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Andrew Harrington and Mark Regan,
Alaska Legal Services Corporation, Fairbanks,
for Appellant. J. John Franich, Assistant
Public Advocate, Fairbanks, Brant McGee,
Public Advocate, Anchorage, and Deborah
Niedermeyer, Fairbanks, for Appellee. Harold
N. Brown and Michael J. Walleri, Tanana Chiefs
Conference, Inc., Fairbanks, for Amicus Curiae
Native Village of Northway. Heather R.
Kendall-Miller and Martha L. King, Native
American Rights Fund, Lloyd Benton Miller,
Anchorage, and Vance A. Sanders, Juneau, for
Amici Curiae Native Village of Venetie Tribal
Government and Alaska Inter-Tribal Council.
Vance A. Sanders, Law Office of Vance A.
Sanders, LLC, Juneau, for Amici Curiae
Paskenta Band of Nomlaki Indians, Scotts
Valley Band of Pomo Indians, and Death Valley
Timbisha Shoshone Tribe. D. Rebecca Snow,
Assistant Attorney General, Fairbanks, and
Bruce M. Botelho, Attorney General, Juneau,
for Amicus Curiae State of Alaska. Lois J.
Schiffer, Assistant Attorney General, David C.
Shilton and Ethan G. Shenkman, Attorneys,
Department of Justice, Washington, D.C., John
D. Leshy, Solicitor and Sandra J. Ashton,
Office of the Solicitor, Department of the
Interior, Washington, D.C., for Amicus Curiae
United States.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
MATTHEWS, Chief Justice, with whom COMPTON,
Justice, joins, dissenting.
I. INTRODUCTION
Seeking sole custody of his two children, John Baker, a
member of Northway Village, filed a custody petition in the
Northway Tribal Court. Anita John, the children's mother and a
member of Mentasta Village, consented to Northway's jurisdiction.
After the tribal court issued an order granting shared custody, Mr.
Baker filed an identical suit in state superior court. Although
Ms. John moved to dismiss based on the tribal court proceeding, the
superior court denied the motion and awarded primary physical
custody to Mr. Baker. Ms. John appeals, arguing that as a
federally recognized tribe, Northway Village has the inherent
sovereignty to adjudicate custody disputes between its members and
that the superior court therefore should have dismissed the state
case.
This appeal raises a question of first impression. We
must decide whether the sovereign adjudicatory authority of Native
tribes exists outside the confines of Indian country. After
reviewing evidence of the intent of the Executive Branch, as well
as relevant federal statutes and case law, we conclude that Native
tribes do possess the inherent sovereign power to adjudicate child
custody disputes between tribal members in their own courts. We
therefore reverse and remand to the superior court to determine
whether the tribal court's custody determination should be
recognized by the superior court under the doctrine of comity.
II. FACTS AND PROCEEDINGS
Anita John and John Baker are Alaska Natives; Ms. John is
a member of Mentasta Village and Mr. Baker is a member of Northway
Village. Although they never married, Ms. John and Mr. Baker had
two children together: John Jr., born in July 1991, and Emmanuel,
born in June 1992. The family lived together in Ms. John's village
until the parents ended their relationship in 1993. For the next
two years, Ms. John and Mr. Baker cooperated in sharing custody of
John Jr. and Emmanuel. This cooperation ended in July 1995 when
Mr. Baker refused to return the children to Ms. John.
In July 1995 Mr. Baker filed a petition with the Northway
Tribal Court requesting sole custody of John Jr. and Emmanuel. The
tribal court sent a notice to the parties on August 10 informing
them of their right to be present at the custody hearing, and both
parents participated in the hearing held on August 29. At the
conclusion of the hearing, Tribal Court Judge Lorraine Titus
ordered the parents to share custody of the children on an
alternating monthly schedule. Judge Titus stated, however, that
this arrangement would be temporary and that she would reconsider
the custody question in one year, before the oldest child entered
school.
The parents followed the tribal court's order from
September to December, deviating from the alternating schedule only
so that Ms. John could care for the children while Mr. Baker was
serving a sentence for DWI. During these months Mr. Baker appealed
to the tribal court to change its custody order, but the court
denied his request. Dissatisfied with the tribal court's custody
determination, Mr. Baker filed a separate action in state court in
December. In the affidavit accompanying the state complaint,
required at that time under the Uniform Child Custody Jurisdiction
Act (UCCJA), Mr. Baker misled the superior court by stating that
he was "unaware of any custody proceeding regarding the children,
except as provided herein, in Alaska, or any other jurisdiction."
Citing the tribal court proceedings, Ms. John filed a
motion to dismiss the state court action. The superior court
denied her motion. Ruling first that the Indian Child Welfare Act
(ICWA) did not apply to a custody dispute between parents, the
court concluded that it had subject matter jurisdiction over the
suit. The court then stated that even if the tribal court had
concurrent jurisdiction, "the facts of this case [would] require"
superior court involvement. The court pointed to the state's
access to a child custody investigator and to the parents'
different tribal affiliations as facts justifying its involvement
in the case.
The superior court's initial temporary custody order was
identical to the tribal court's. The parties therefore continued
with the alternating monthly custody schedule until April 1996,
when the superior court altered its temporary order to give Mr.
Baker primary custody. The superior court's final order, entered
after trial, maintained Mr. Baker as primary physical custodian and
granted Ms. John visitation every other weekend during the school
year and for at least eight weeks during the summer. Although it
recognized that both parents had experienced problems with
substance abuse in the past, the superior court found that Mr.
Baker was in better control of his problems than Ms. John. In
addition, the court stated that Ms. John needed to address other
issues, such as her severe depression. Ms. John appealed to this
court, arguing that the superior court should have granted her
motion to dismiss.
Shortly after we initially held oral argument in this
appeal, the United States Supreme Court decided Alaska v. Native
Village of Venetie Tribal Government (Venetie II). We then
requested supplemental briefing, asking the parties to address how
the Venetie II decision affects the issues presented.
III. DISCUSSION
Resolving this appeal requires us to examine the nature
and scope of Native American self-government in Alaska. We must
decide whether Northway Village had the jurisdiction to adjudicate
a custody dispute involving children who are tribal members. If
Northway possessed such jurisdiction, we must then decide whether
the superior court should have dismissed Mr. Baker's identical
state suit.
In a line of decisions beginning with Native Village of
Nenana v. State, Department of Health & Social Services, and
ending in In re F.P., we held that Native villages in Alaska do
not have the power to adjudicate some types of child custody
disputes. Recognizing the existence of these precedents, Ms. John
presents two alternative arguments for finding tribal jurisdiction
in this case. First, she argues that we can rule in her favor
without overruling Nenana and F.P. because those decisions do not
apply to the facts of this appeal. Second, she contends that even
if Nenana and F.P. do apply, we should reconsider their holdings.
Ms. John claims that, regardless of whether they occupy Indian
country, Alaska Native villages can adjudicate child custody
disputes between members because of their status as federally
recognized tribes.
Mr. Baker's briefing focuses on perceived flaws in the
tribal court's decision in this case. He therefore claims that
even if Northway Village generally has jurisdiction to decide child
custody disputes between members, state courts should not recognize
this particular decision because the proceedings violated due
process and because his children are not members of Northway
Village. We evaluate each of the parties' arguments after
discussing the relevant standard of review.
A. Standard of Review
We rely on our independent judgment to decide legal
questions such as the scope of tribal court subject matter
jurisdiction and the meaning of federal statutes. In exercising
our independent judgment, we will adopt the rule of law that is
most persuasive in light of precedent, reason, and policy.
B. Our Prior Decisions on Tribal Court Jurisdiction to
Decide Custody Disputes Do Not Apply to This Case.
Mr. Baker claims that the holdings in Nenana and F.P.
compel the conclusion that Northway is without jurisdiction in this
case. Although not conceding that these decisions apply to the
facts before us, Ms. John asks us to reconsider the holdings of
those decisions. All the amici, including the United States and
the State of Alaska, join Ms. John in urging us to reconsider these
decisions and recognize tribal court jurisdiction. Before we
decide whether to re-examine our precedents, we must determine
whether they apply to the facts before us. Accordingly, we begin
our analysis with an examination of whether it is necessary that we
revisit Nenana and F.P. in order to decide this case.
Although the holdings in Nenana and F.P. touched upon the
contours of tribal court jurisdiction, both of those decisions were
rooted in a pair of federal laws that may not apply to the facts of
the dispute between Ms. John and Mr. Baker: Public Law 280 (P.L.
280) and the Indian Child Welfare Act (ICWA). If this case does
not fall within the scope of either of those pieces of legislation,
then the holdings in our prior decisions are not squarely before us
today, and it may be unnecessary to reconsider them.
1. The holdings of Nenana and F.P.
Nenana and F.P. dealt with the question of tribal court
jurisdiction in cases falling under ICWA in Alaska. In Nenana, the
village petitioned a superior court under ICWA to transfer a child-
in-need-of-aid proceeding to the village's jurisdiction.
Interpreting ICWA, the superior court ruled that transfer was
improper because the village had not petitioned the Secretary of
the Interior to reassume jurisdiction over child custody
proceedings.
In evaluating the arguments on appeal in Nenana, we first
considered 1918(a) of ICWA, which states that any Indian tribe
that became subject to state jurisdiction under P.L. 280 may
"reassume" jurisdiction over child custody proceedings by
petitioning the Secretary of the Interior. Public Law 280 is a
federal statute that grants several states, including Alaska,
jurisdiction over all civil and criminal matters arising in Indian
country. In Nenana, we interpreted 1918(a)'s reassumption
requirement to mean that P.L. 280 had vested exclusive jurisdiction
over child custody matters in state courts, and that the state
exercised exclusive jurisdiction until a particular tribe
successfully petitioned the Secretary of the Interior. Because
the village of Nenana had not petitioned the Secretary of the
Interior for reassumption, we affirmed the superior court's denial
of the petition for transfer.
In F.P., we were asked to reconsider Nenana's holding in
light of the Ninth Circuit's decision in Native Village of Venetie
I.R.A. Council v. Alaska (Venetie I). The question before the
Ninth Circuit in Venetie I was whether ICWA required the State of
Alaska to recognize tribal court child custody determinations.
The state argued that because P.L. 280 had granted state courts
exclusive jurisdiction over all civil disputes, the villages could
not exercise any child custody jurisdiction without first
petitioning the Secretary of the Interior. The Ninth Circuit
resolved the dispute by addressing two issues: first, "whether the
native villages are inherently sovereign, at least insofar as
domestic relations or child-custody issues are concerned," and
second, "whether Congress has stripped the villages of that aspect
of sovereign authority which encompasses child-custody
determinations." Although suggesting that it saw no impediment
to a finding of sovereignty, the court concluded that sovereign
status depended on a factual analysis that should be conducted by
the district court. It then held that P.L. 280 had not stripped
the villages of sovereignty over child custody issues because it
had granted the states only concurrent jurisdiction.
In F.P., we disagreed with the Ninth Circuit's
conclusions on both the issue of sovereignty and on the meaning of
P.L. 280. Addressing the sovereignty question first, we stated
that the Ninth Circuit's "opinion is contrary to Native Village of
Stevens v. Alaska Management & Planning,[ ] where we concluded that
'the history of the relationship between the federal government and
Alaska Natives indicates that Congress intended that most Alaska
Native groups not be treated as sovereigns.'" Moving to the
second step in the Venetie I analysis, we reiterated our view that
P.L. 280 had granted the states exclusive jurisdiction over child
custody matters, quoting from the portion of Nenana that
interpreted ICWA's 1918(a). We therefore reaffirmed our prior
holding that tribal courts lack jurisdiction over child custody
proceedings under ICWA until they successfully reassume
jurisdiction by filing a petition with the Secretary of the
Interior.
In sum, our decisions to limit tribal adjudicatory power
in Nenana and F.P. turned on our interpretation and application of
ICWA and P.L. 280. In order to determine if those decisions are
controlling, then, we must examine whether those two federal laws
similarly apply to the case presently before us.
2. ICWA does not apply to the dispute between Mr. Baker
and Ms. John.
ICWA's provisions, including the reassumption requirement
of 1918(a) that we interpreted in Nenana and F.P., apply only to
"child custody proceedings" as defined by the statute. ICWA's
1903 specifically excludes from this definition an award of custody
to one of the parents in a divorce proceeding. Ms. John relies on
this language to argue that ICWA is inapplicable to this dispute
because it will result in a custody award to a parent. Thus, we
must decide whether a custody battle between unmarried parents
qualifies for the divorce exception to ICWA.
Congress's intent in enacting ICWA suggests that the
divorce exception should apply to this case. Congress created ICWA
because it was alarmed by the number of Indian children removed by
state agencies from their parents and tribes and placed into non-
Indian homes. In the policy declaration incorporated into ICWA
itself, Congress stated that the statute's dual purpose was "to
protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families." The
legislative history emphasizes this dual purpose, stating that the
statute "seeks to protect the rights of the Indian child as an
Indian and the rights of the Indian community and tribe in
retaining its children in its society."
The custody dispute between Ms. John and Mr. Baker raises
neither of the concerns ICWA sought to address. Whatever the
outcome of the custody battle, John Jr. and Emmanuel will continue
to split their time between the homes of their Native parents and
their Native villages. Because this case does not pose the
possibility that the children will be removed from their parents or
their tribes, ICWA's exclusive jurisdiction provision as well as
its intricate procedural guidelines are unnecessary to protect the
family's or the tribes' interests.
Specific legislative history also suggests that Congress
intended the divorce exception to apply to any parental custody
dispute. Commenting on a draft of ICWA, the Department of the
Interior wrote to Congress suggesting that it create exceptions to
the type of proceedings covered by the Act. Stating that the
"protections provided by this act are not needed in proceedings
between parents," the Department of the Interior advocated for the
divorce exception. Apparently agreeing with the Department's
view, Congress inserted the divorce exception into ICWA. The
legislature's decision to create the exception based on the
Department's opinion that ICWA's protections were unnecessary in
disputes between parents suggests that Congress intended for the
exception to apply to all parental custody battles.
Relying on the legislative history, the Bureau of Indian
Affairs has concluded that Congress intended for the divorce
exception to apply to all "domestic relations proceedings . . . so
long as custody is awarded to one of the parents." Additionally,
the courts that have considered the question have concluded that
ICWA does not apply to disputes between unmarried parents. Based
on this case law, the conclusions of the Bureau of Indian Affairs,
and the purpose of ICWA as expressed in its text and legislative
history, we conclude that ICWA does not apply to this inter-
parental custody dispute.
3. The Supreme Court's decision in Venetie II suggests
that P.L. 280 does not apply to Native tribes
occupying Alaska Native Claims Settlement Act
lands.
The United States Supreme Court's recent Venetie II
decision suggests that P.L. 280, which grants states jurisdiction
over disputes in Indian country, has limited application in Alaska
because most Native land will not qualify for the definition of
Indian country. By its very text, P.L. 280 applies only to Indian
country. If Northway Village does not occupy Indian country, then
our rulings interpreting P.L. 280 are not germane to this appeal.
In Venetie II, the Supreme Court interpreted the Alaska
Native Claims Settlement Act (ANCSA), which resolved Native claims
to Alaska land by instituting a novel form of Native land
ownership. Under this innovative scheme, Congress revoked all
existing Indian reservations in Alaska but one, and extinguished
all aboriginal title and claims to Alaska land. In exchange,
ANCSA entitled Native-owned, state-chartered regional and village
corporations to receive approximately forty-four million acres of
land and $962.5 million in monetary compensation.
The Venetie II Court was faced with the question of
whether ANCSA lands qualify as "Indian country" under a federal
statute, 18 U.S.C. 1151, defining the term. Under 1151, three
kinds of Native lands qualify as Indian country: Indian
reservations under federal jurisdiction, Indian allotments, and
"dependent Indian communities." ANCSA revoked all federal Indian
reservations in Alaska but one. The Supreme Court held in Venetie
II that a village occupying ANCSA lands does not qualify for the
"dependent community" definition of Indian country. Venetie II's
holding, therefore, appears to undermine the Indian country claims
of those Alaska villages, like Northway Village, that occupy ANCSA
lands. If Northway Village does not occupy Indian country as a
result of Venetie II, then P.L. 280 has no direct relevance to this
appeal.
We conclude, then, that neither ICWA nor P.L. 280 applies
to the case before us. Since Nenana and the decisions that
followed it were rooted in the application of these statutes, the
rationale underlying those precedents is not specifically called
into question today. We accordingly conclude that it is neither
necessary nor appropriate at this time to reach the question of
whether Nenana and its progeny were wrongly decided.
We have determined that the central issue in this appeal
-- whether tribal courts have jurisdiction over non-ICWA child
custody cases arising outside of Indian country -- is not affected
by our holdings in Nenana and F.P. To resolve it, we must instead
explore the nature of tribal power under federal law.
C. Tribes without Indian Country Can Adjudicate Internal
Child Custody Disputes.
Today we must decide for the first time a question of
significant complexity and import: Do Alaska Native villages have
inherent, non-territorial sovereignty allowing them to resolve
domestic disputes between their own members? After examining
relevant federal pronouncements regarding sovereign power, we hold
that Alaska Native tribes, by virtue of their inherent powers as
sovereign nations, do possess that authority.
1. We defer to Congress's finding that Alaska Native
tribes are sovereign powers under federal law.
We have previously held that tribal status is a non-
justiciable political question. We therefore will defer to the
determinations of Congress and the Executive Branch on the question
of tribal status. If Congress or the Executive Branch recognizes
a group of Native Americans as a sovereign tribe, we "must do the
same."
Prior to 1993, no such recognition of Alaska villages had
occurred. In Native Village of Stevens v. Alaska Management &
Planning, we conducted an historical analysis and concluded that
the federal government had never recognized Alaska villages as
sovereign tribes. We relied on this analysis in F.P. to hold that
Native villages lacked sovereignty.
In 1993, however, the Department of the Interior issued
a list of federally recognized tribes that included Northway
Village and most of the other Native villages in Alaska. In the
list's preamble, the Department of Interior explained that it was
issuing the list in order to clarify confusion over the tribal
status of various Alaska Native entities. The Department believed
that previous lists had been interpreted to mean that Native
villages in Alaska, although qualifying for federal funding, were
not recognized as sovereign tribes. It sought to rectify this
misunderstanding and to reaffirm the sovereign status of the
recognized tribes. In particular, the Department emphasized that
the list included those Alaskan entities that the federal
government historically had treated as tribes.
The Department also suggested in the preamble that its
decision to publish the list was based on a recent opinion by the
Solicitor of the Department of Interior, Thomas Sansonetti. In
this opinion, Sansonetti evaluated the sovereign tribal status of
Alaska Native villages, conducting the same historical analysis as
did the Stevens court but reaching the opposite conclusion.
Although recognizing that Alaska Native villages differed in
significant ways from the tribes in the Lower 48, the Solicitor
concluded that, for the last half century, Congress and the
Interior Department "have dealt with the Alaska Natives as though
there were tribes in Alaska."
The language in the preamble to the 1993 list
unquestionably establishes that the Department of the Interior
views the recognized Alaska villages as sovereign entities. The
preamble affirms the Department's view that federally recognized
tribes possess governmental authority and autonomy stemming from
their tribal status:
The Bureau of Indian Affairs . . . [finds]
that the villages and regional tribes listed
below have functioned as political entities
exercising governmental authority . . . .
. . . .
The purpose of the current publication is
. . . to eliminate any doubt as to the
Department's intention by expressly and
unequivocally acknowledging that the
Department has determined that the villages
and regional tribes listed below are
distinctly Native communities and have the
same status as tribes in the contiguous 48
states. . . . [T]he villages and regional
tribes listed below are not simply eligible
for services, or recognized as tribes for
certain narrow purposes. Rather, they have
the same governmental status as other
federally acknowledged Indian tribes by virtue
of their status as Indian tribes with a
government-to-government relationship with the
United States . . . .[ ]
And for those who may have doubted the power of the
Department of the Interior to recognize sovereign political bodies,
a 1994 act of Congress appears to lay such doubts to rest. In the
Federally Recognized Tribe List Act of 1994, Congress specifically
directed the Department to publish annually "a list of all Indian
tribes which the Secretary recognizes to be eligible for the
special programs and services provided by the United States to
Indians because of their status as Indians." The Department
published tribal lists for 1995 through 1998, all of which include
Alaska Native villages such as Northway, based on this specifically
delegated authority.
The text and legislative history of the Tribe List Act
demonstrate that Congress also views the recognized tribes as
sovereign bodies. In the Act's findings section, Congress
discusses the "sovereignty" of federally recognized tribes.
Similarly, the House report to the Act provides that federal
recognition "institutionalizes the tribe's quasi-sovereign
status." Acknowledging that federal recognition "is no minor
step," the report states that such recognition "permanently
establishes a government-to-government relationship between the
United States and the recognized tribe as a 'domestic dependent
nation.'"
Through the 1993 tribal list and the 1994 Tribe List Act,
the federal government has recognized the historical tribal status
of Alaska Native villages like Northway. In deference to that
determination, we also recognize such villages as sovereign
entities.
The fact that Northway Village is a federally recognized
tribe answers only part of the question posed by this case. Alaska
Native villages such as Northway are in a unique position: Unlike
most other tribes, Alaska Native villages occupy no reservations
and for the most part possess no Indian country. Mr. Baker and the
dissent argue that the existence of tribal land -- Indian country
-- is the cornerstone of tribal court jurisdiction and that
Congress necessarily withdrew such jurisdiction from Alaska Native
villages when it enacted ANCSA.
To evaluate this argument, we must decide how much
authority tribes retain in the absence of reservation land. We
must, in other words, determine the meaning of "sovereignty" in the
context of Alaska's post-ANCSA landscape by asking whether ANCSA,
to the extent that it eliminated Alaska's Indian country, also
divested Alaska Native villages of their sovereign powers.
2. Tribes retain their sovereign powers to regulate
internal domestic affairs unless Congress
specifically withdraws their authority to act.
The extent of tribal self-government depends on the
intent of Congress. We begin our analysis of congressional intent
with the established principle under federal law that "Indian
tribes retain those fundamental attributes of sovereignty . . .
which have not been divested by Congress or by necessary
implication of the tribe's dependent status." The United States
Supreme Court explained in United States v. Wheeler that this
starting point stems from the fact that tribal governance predates
the founding of our nation: "The powers of Indian tribes are, in
general, inherent powers of a limited sovereignty which has never
been extinguished. Before the coming of the Europeans, the tribes
were self-governing sovereign political communities. . . . The
sovereignty that the Indian tribes retain is of a unique and
limited character."
Modern tribal sovereignty is certainly not absolute;
"[i]t exists only at the sufferance of Congress and is subject to
complete defeasance. But until Congress acts, . . . Indian tribes
still possess those aspects of sovereignty not withdrawn by treaty
or statute, or by implication as a necessary result of their
dependent status." In explaining this rule, the Supreme Court has
articulated a core set of sovereign powers that remain intact even
though Indian nations are dependent under federal law; in
particular, internal functions involving tribal membership and
domestic affairs lie within a tribe's retained inherent sovereign
powers.
Alaska law, too, has long recognized that sovereign
powers exist unless divested. For example, we stated in Ollestead
v. Native Village of Tyonek that "the principle that Indian tribes
are sovereign, self-governing entities" governs "all cases where
essential tribal relations or rights of Indians are involved."
We recognized then that "Indian affairs are subject to state law
but only to the extent that Congress explicitly so provides." In
accordance with the Supreme Court's approach in Wheeler, reiterated
in cases following that decision and established under Alaska law,
we presume that tribal sovereign powers remain intact. Thus, we
begin by evaluating federal statutes affecting Alaska Natives in
order to determine whether Congress has explicitly revoked the
inherent sovereignty of Alaska's Native tribes by eliminating their
Indian country.
The dissent, however, asks us to begin from the opposite
premise. Rather than following the teachings of federal and state
law that respect tribal sovereignty by presuming that sovereign
power exists unless divested, the dissent quotes language from
Mescalero Apache Tribe v. Jones, in which the United States
Supreme Court noted that "Indians going beyond reservation
boundaries have generally been held subject to non-discriminatory
state law otherwise applicable to all citizens." From this
statement the dissent deduces what it terms an "allocative
principle." Based upon Mescalero's language, the dissent
formulates a presumption that would reverse the basic rule and
require courts, at least outside of Indian country, to refuse to
recognize tribal jurisdiction unless an act of Congress
specifically authorizes the exercise of tribal adjudicatory power.
We refuse to accept this invitation to deny the existence of
tribal sovereignty and to turn federal law on its head.
The dissent's "allocative principle" thesis ignores the
teachings of Wheeler and the decisions that follow it. In these
post-Mescalero decisions, the Court has not focused on tribal land
as determinative of tribal authority. Instead of interpreting the
Mescalero language as an across-the-board prohibition of tribal
sovereignty in the absence of Indian country, for example, the
Court in Montana v. United States reconciled the general rule that
tribal sovereignty exists unless specifically divested with the
Mescalero language that state law applies to natives beyond
reservation land. But Montana, in contrast to the dissent,
articulates no test making the existence of reservation land
determinative of tribal power. Instead, the Montana Court
explained that Mescalero stands for the proposition that an express
congressional delegation of power is required to sustain tribal
power when the tribe has sought to control matters outside the
scope of internal governmental authority: "[E]xercise of tribal
power beyond what is necessary to protect tribal self-government or
to control internal relations is inconsistent with the dependent
status of the tribes, and so cannot survive without express
congressional delegation." The Court has continued to adhere to
this proposition, requiring express Congressional delegation of
power only when a tribe seeks to exercise power outside of its core
sovereign authority.
Thus, in determining whether tribes retain their
sovereign powers, the United States Supreme Court looks to the
character of the power that the tribe seeks to exercise, not merely
the location of events. We accordingly decline to adopt the
dissent's approach and instead follow federal law by beginning from
the premise that tribal sovereignty with respect to issues of
tribal self-governance exists unless divested. Congress has
recognized that a tribe has a strong interest in "preserving and
protecting the Indian family as the wellspring of its own future."
Because Northway Village's status as a federally recognized tribe
is undisputed and its adjudication of child custody disputes over
member children is necessary "to protect tribal self-government or
to control internal relations," its tribal courts require no
express congressional delegation of the right to determine custody
of tribal children.
Finally, we note a tenet of federal Indian law on
statutory interpretation that informs our analysis of this issue.
Supreme Court precedent supplies clear instructions for
interpreting ambiguous statutes: Courts must resolve ambiguities in
statutes affecting the rights of Native Americans in favor of
Native Americans. Thus, we will not lightly find that Congress
intended to eliminate the sovereign powers of Alaska tribes.
3. ANCSA itself and post-ANCSA federal statutes
regarding tribal sovereignty all support Northway's
jurisdiction over child custody matters.
Ample evidence exists that Congress did not intend for
ANCSA to divest tribes of their powers to adjudicate domestic
disputes between members. Congress intended ANCSA to free Alaska
Natives from the dictates of "lengthy wardship or trusteeship,"
not to handicap tribes by divesting them of their sovereign powers.
As a principal author of the law has explained, ANCSA "rejected
the paternalism of the past and gave Alaska Natives an innovative
way to retain their land and culture without forcing them into a
failed reservation system." But nowhere does the law express any
intent to force Alaska Natives to abandon their sovereignty.
Outside of ANCSA, too, ample evidence exists that
Congress did not intend for ANCSA to divest tribes of their powers
to adjudicate domestic disputes between members. Post-ANCSA
congressional actions such as the Tribe List Act, ICWA, and the
Tribal Justice Act indicate that Congress intended for post-ANCSA
Alaska Natives to continue to regulate their internal affairs.
We noted above that the Tribe List Act shows Congress's
determination that Alaska Native villages are sovereign entities.
The inclusion of Alaska Native villages on the tribal lists makes
clear that Alaska Natives "have the right, subject to general
principles of Federal Indian law, to exercise the same inherent and
delegated authorities available to other tribes." And since this
court defers to determinations of tribal status by the Executive
Branch or by Congress, we similarly accept their conclusion that,
even after ANCSA, federally recognized Alaska Native tribes like
Northway Village retain sovereignty to adjudicate domestic disputes
between members.
To hold otherwise would render the Tribe List Act hollow:
If tribes that do not occupy Indian country have no inherent powers
of self-governance, the language in the Tribe List Act that
expressly reserves to these tribes "the right . . . to exercise the
same inherent and delegated authorities available to other tribes"
would be virtually meaningless. We find untenable the conclusion
that Congress intended for the Tribe List Act to be an empty
gesture.
The passage of ICWA seven years after ANCSA's enactment
also makes clear that Congress did not intend ANCSA to eradicate
tribal court jurisdiction over family law matters. ICWA's goal was
to increase tribal control over custody decisions involving tribal
children. Congress viewed this increased control as vital to the
continued sovereignty of the tribes. In the legislative history to
ICWA, Congress cited with approval a decision stating that "there
can be no greater threat to 'essential tribal relations,' and no
greater infringement on the right of the . . . tribe to govern
themselves than to interfere with tribal control over the custody
of their children." Alaska Native villages are explicitly
included within ICWA's scope.
ICWA's very structure presumes both that the tribes
covered by the Act are capable of adjudicating child custody
matters in their own courts and that tribal justice systems are
appropriate forums for resolution of child custody disputes.
Indeed, legislative history reveals that ICWA's jurisdictional
framework was motivated by concerns over the "failure of State
officials, agencies, and procedures to take into account the
special problems and circumstances of Indian families and the
legitimate interest of the Indian tribe in preserving and
protecting the Indian family as the wellspring of its own future."
Although the custody dispute at the center of this case falls
outside ICWA's scope, Congress's purpose in enacting ICWA reveals
its intent that Alaska Native villages retain their power to
adjudicate child custody disputes.
The Tribal Justice Act, enacted in 1993, further
evidences the congressional view that the Native villages retain
governmental powers. The Act provides financial support for
tribal court activities without drawing distinctions between those
tribes that occupy Indian country and those that do not and
specifically includes Alaska Native villages recognized as tribes
within its scope. Additionally, in the Act's findings section,
Congress recognizes that all "Indian tribes possess the inherent
authority to establish their own form of government," that "tribal
justice systems [are] the appropriate forums for the adjudication
of disputes affecting personal and property rights," and that
"traditional tribal justice practices are essential to the
maintenance of the culture and identity of Indian tribes."
Based on the intent of Congress, as revealed by the Tribe
List Act, ICWA, and the Tribal Justice Act, we conclude that Alaska
Native villages do possess governmental powers over child custody
matters. We next examine federal decisional law regarding tribal
sovereignty to see what guidance they provide on the issue of
Northway's post-ANCSA jurisdiction.
4. Federal case law suggests that post-ANCSA, Alaska's
tribes retain non-territorial sovereignty that
includes power over child custody disputes.
Ms. John and the amici argue that the existence of Indian
country is linked only to the tribe's power over land and
nonmembers, not to its power over members. Thus, they claim that
even if Northway Village does not occupy Indian country, it can
nevertheless adjudicate disputes between its members.
Because the traditional reservation-based structure of
tribal life in most states forms the backdrop for the federal
cases, courts have not had occasion to tease apart the ideas of
land-based sovereignty and membership sovereignty. Consequently,
the federal decisions do not conclusively answer the question of
what happens when a law like ANCSA separates membership and land
completely by allowing a federally recognized tribe to redefine its
relationship to state and federal governments by eliminating the
idea of Indian country. But federal case law does provide
significant support for our conclusion that federal tribes derive
the power to adjudicate internal domestic matters, including child
custody disputes over tribal children, from a source of sovereignty
independent of the land they occupy.
The federal decisions discussing the relationship between
Indian country and tribal sovereignty indicate that the nature of
tribal sovereignty stems from two intertwined sources: tribal
membership and tribal land. The United States Supreme Court has
recognized the dual nature of Indian sovereignty for more than a
century and a half; the Court has explained that, under federal
law, "Indian tribes are unique aggregations possessing attributes
of sovereignty over both their members and their territory."
Tribes not only enjoy the authority to exercise control within the
boundaries of their lands, but they also possess the inherent
"power of regulating their internal and social relations."
Mr. Baker and the dissent argue that many federal
decisions construing the nature of tribal sovereignty view the
existence of Indian country as the critical factor in determining
the existence or extent of tribal authority. But the case law does
not fairly support the view that the existence of Indian country is
an absolute prerequisite to the existence of sovereign tribal
power.
To the contrary, in a series of decisions exploring the
nature of tribal sovereignty, the Court has noted the crucial role
tribal membership plays in defining the scope of tribal authority.
The distinction between members and nonmembers has often been
treated as a dispositive factor in federal Indian jurisprudence.
In United States v. Wheeler, for example, the Court held that
although tribes enjoy less sovereignty than foreign nations by
virtue of their dependent relationship with the federal government,
tribes retain the core power to regulate internal affairs:
The areas in which such implicit divestiture
of sovereignty has been held to have occurred
are those involving the relations between an
Indian tribe and nonmembers of the tribe.
Thus, Indian tribes can no longer freely
alienate to non-Indians the land they occupy.
They cannot enter into direct commercial or
governmental relations with foreign nations.
And, as we have recently held, they cannot
try nonmembers in tribal [criminal] courts.
These limitations rest on the fact that
the dependent status of Indian tribes within
our territorial jurisdiction is necessarily
inconsistent with their freedom independently
to determine their external relations. But
the powers of self-government, including the
power to prescribe and enforce internal
criminal laws, are of a different type. They
involve only the relations among members of a
tribe. Thus, they are not such powers as
would necessarily be lost by virtue of a
tribe's dependent status.[ ]
Other decisions similarly stress the importance of tribal
power to regulate internal domestic relations. Three years after
Wheeler, the Court in Montana v. United States reaffirmed the
significance of tribal membership and reaffirmed the importance of
Native American self-governance: "Thus, in addition to the power
to punish tribal offenders, the Indian tribes retain their inherent
power to determine tribal membership, to regulate domestic
relations among members, and to prescribe rules of inheritance for
members." The Court has stated that a tribe's authority to
"determine rights to custody of a child of divorced parents of the
tribe" falls within the boundaries of inherent tribal
sovereignty. Again in 1990, the Court in Duro v. Reina
emphasized the fundamental importance of membership, noting the
federal law's consistency "in describing retained tribal
sovereignty . . . in terms of a tribe's power over its members."
In deciding that the Salt River Pima-Maricopa tribe was without
jurisdiction to prosecute criminally a man not eligible for
membership, the Court emphasized the crucial distinction between
members and nonmembers of the tribe. The court also noted the
importance of membership throughout different areas of federal
Indian law, including taxation, regulation of hunting and fishing,
and civil and criminal court jurisdiction.
The Supreme Court has also applied these principles in
the specific context of tribal authority to handle civil disputes
in tribal justice systems. Tribes "have power to make their own
substantive law in internal matters, and to enforce that law in
their own forums." And tribal courts may also have jurisdiction
to "resolve civil disputes involving nonmembers, including non-
Indians" when the civil actions involve essential self-governance
matters such as membership or other areas where "the exercise of
tribal authority is vital to the maintenance of tribal integrity
and self-determination." The key inquiry, according to the
Court, is not whether the tribe is located in Indian country, but
rather whether the tribe needs jurisdiction over a given context to
secure tribal self-governance: "If state-court jurisdiction over
Indians . . . would interfere with tribal sovereignty and self-
government, the state courts are generally divested of jurisdiction
as a matter of federal law."
Fisher v. District Court provides an example of the
Supreme Court's recognition of the dual nature of sovereignty in
the case law. Fisher, like the case before us, was a family law
dispute between Native American parents. The Northern Cheyenne
Tribal Court removed Ivan Fisher from his mother's home and placed
him with another tribal member, who wished to adopt him. In
determining that the Montana state courts had no jurisdiction over
the Runsaboves' adoption proceeding, the Supreme Court noted that
the tribal court had exclusive jurisdiction in part because "the
adoption proceeding is appropriately characterized as litigation
arising on the Indian reservation." But two paragraphs later the
Court stated that "[t]he exclusive jurisdiction of the Tribal Court
. . . [derives] from the quasi-sovereign status of the Northern
Cheyenne Tribe under federal law." This description of Native
sovereignty as stemming from the tribe itself is at odds with the
dissent's theory that a tribe's ability to adjudicate internal
disputes is premised solely on the basis of its location within
Indian country.
Fisher therefore reflects both a recognition of
territorial bases of sovereignty and an understanding that tribal
status itself includes the power to adjudicate internal child
custody disputes. Indeed, the Fisher court concluded that allowing
Montana's state courts to hear the custody case between Native
parents "plainly would interfere with the powers of self-government
. . . exercised through the Tribal Court" and voiced its concern
that such usurpation "would cause a corresponding decline in the
authority of the Tribal Court." Although that case took place
on a reservation, the considerations of noninterference and respect
for tribal forums invoked by the Fisher court apply outside of
Indian country.
The dissent interprets Fisher in quite a different way.
Along with DeCoteau v. District County Court, Fisher is one of
two decisions that the dissent believes illustrates its theory that
no tribal court jurisdiction whatsoever can exist without Indian
country. But these decisions do not support the dissent's thesis
that tribal sovereignty exists only within Indian country.
DeCoteau involved the narrow jurisdictional issue of
whether South Dakota's state courts could assert any jurisdiction
over the conduct of tribal members on a reservation, something
normally within the tribe's exclusive jurisdiction. The Court
expressly stated that the only issue presented by the case was
whether the reservation existed; the Court did not consider the
implications of the reservation's existence because it accepted a
stipulation by the parties that the state had jurisdiction if the
reservation had been terminated by Congress. After describing
the legal agreement between the parties, which the Court assumed
without deciding was an accurate one, the Court noted in footnote
2 that the parties relied on 11 U.S.C. 1151(a) and (c) in
formulating their stipulation. This statute defines "Indian
country" for purposes of criminal jurisdiction, and the Court noted
that the law "generally applies as well to questions of civil
jurisdiction." Footnote 2 amounts, then, to little more than a
passing recognition of settled case law interpreting that statute's
usual meaning and scope. That this was all the Court meant to say
in footnote 2 is illustrated by the Court's reference to that
footnote in Venetie II, which cited DeCoteau not for any bright-
line jurisdictional test but only for the long-standing holding
that 1151 generally applies to both criminal and civil cases.
Moreover, the Venetie II court makes clear that any allocative
significance that exists in the concept of Indian country pertains
to a tribe's territorial power over its land, not its members.
Fisher teaches even less about the existence of any kind
of rule equating Indian country with sovereign adjudicatory power.
The Fisher Court asked only whether Montana had any basis to
assert concurrent jurisdiction over the Runsaboves' adoption
proceeding; it assumed that the tribal court retained some form of
jurisdiction, either exclusive or concurrent, stemming from the
tribe's right to govern itself. Because it found that state
court jurisdiction would interfere with the tribe's self-governance
and diminish the authority of the tribal court, and because the
state had no interest in the dispute since all relevant events took
place on Indian land, the Court held that the tribe had exclusive
jurisdiction over the adoption. But Fisher does not imply that
jurisdiction must lie exclusively in one forum or another. The
Supreme Court viewed the case before it as one in which Indian
jurisdiction was unquestioned and the only issue presented was
whether Montana had any form of jurisdiction at all. Thus,
Fisher's holding -- that Indian land may be a prerequisite to
exclusive tribal jurisdiction -- in no way answers the question of
whether the tribal court retains concurrent jurisdiction over
tribal relations without such land.
Following in the line of Wheeler and Montana, a pair of
recent tax decisions illustrates that DeCoteau and Fisher leave
today's dispute unanswered. And they indicate that the Supreme
Court has been careful to note that the general rule that "Indians
going beyond reservation boundaries have generally been held
subject to non-discriminatory state law otherwise applicable to all
citizens of the State" -- the source of the dissent's "allocative
principle" -- does not mean that a tribe must forego its
fundamental self-governance because of a lack of Indian country.
In Oklahoma Tax Commission v. Sac and Fox Nation, the Court
specifically declined to answer the question of "whether the
Tribe's right to self-governance could operate independently of its
territorial jurisdiction to pre-empt the state's ability to tax
income . . . when the employee does not reside in Indian
country." Two years later, in Oklahoma Tax Commission v.
Chickasaw Nation, the Supreme Court emphasized that the question
of a tribe's internal powers absent Indian country was undecided,
but implied that a tribe's ability to retain fundamental powers of
self-governance is the more important principle.
The Chickasaw Nation Court held that Oklahoma could not
collect several challenged taxes within an Indian reservation but
could collect taxes on tribal members living outside Indian
country. The court noted that generally applicable state laws are
usually enforceable against Natives in the absence of Indian
country. But the Court also implied that its result would be
different had the parties' dispute implicated the tribal self-
governance concerns raised by a family law matter integral to
tribal self-governance. In explaining its rationale, the Supreme
Court said: "Notably, the Tribe has not asserted here, or before
the Court of Appeals, that the State's tax infringes on tribal
self-governance." Only after twice emphasizing that the
Chickasaw Nation did not raise self-governance claims and that the
Court was thus procedurally foreclosed from considering such
arguments did the Court reach its decision.
The custody dispute between Ms. John and Mr. Baker lies
at the core of sovereignty -- a tribe's "inherent power to
determine tribal membership, to regulate domestic relations among
members, and to prescribe rules of inheritance for members." By
deliberately leaving the door open for tribal governments to
conduct internal self-governance functions in the absence of Indian
country, Chickasaw Nation and Sac and Fox Nation suggest that
Northway Village has jurisdiction to hear this dispute because the
right to determine custody of Indian children, unlike Oklahoma's
motor fuels tax, "infringes on tribal self-governance."
As recently as last year, the Supreme Court reaffirmed
the notion that the existence of Indian country is not a
dispositive factor in determining jurisdiction. In Kiowa Tribe of
Oklahoma v. Manufacturing Technologies, Inc., the Court held that
tribes enjoy sovereign immunity from civil lawsuits asserting
contract claims regardless of whether the contracts were formed on
or off Indian land. Although the case dealt with a different set
of factual circumstances than the present dispute, it is notable
that only the Kiowa Tribe dissenters believed that the "generally
applicable state laws" rule should apply to hold the tribe subject
to suit for a promissory note executed outside of Indian country.
Although the dissenters claimed that the immunity doctrine should
not apply to conduct unrelated to the tribe's Indian country, the
majority refused to accept this narrow territorial conception.
We similarly refuse to accept it today.
Decisions of the United States Supreme Court support the
conclusion that Native American nations may possess the authority
to govern themselves even when they do not occupy Indian country.
The federal decisions contain language supporting the existence of
tribal sovereignty based on either land or tribal status. Indian
law jurisprudence stresses the central importance of membership and
the fundamental powers of tribes to adjudicate internal family law
affairs like child custody disputes. Decisions like Chickasaw
Nation and Sac and Fox Nation suggest that tribes without Indian
country do possess the power to adjudicate internal self-governance
matters. We hold that the type of dispute before us today -- an
action for determination of custody of the children of a member of
Northway Village -- falls squarely within Northway's sovereign
power to regulate the internal affairs of its members.
Although Ms. John is not a member of Northway Village,
she argues that the children themselves are eligible for tribal
membership. This is a critical fact that must be determined by the
superior court on remand, as we discuss in Part III.E.3. A tribe's
inherent sovereignty to adjudicate internal domestic custody
matters depends on the membership or eligibility for membership of
the child. Such a focus on the tribal affiliation of the children
is consistent with federal statutes such as ICWA, which focuses on
the child's tribal membership as a determining factor in allotting
jurisdiction. Because the tribe only has subject matter
jurisdiction over the internal disputes of tribal members, it has
the authority to determine custody only of children who are members
or eligible for membership.
5. Alaska's state courts retain concurrent jurisdiction
over this dispute.
Although we recognize Northway's jurisdiction to
adjudicate child custody disputes between village members, its
jurisdiction is not exclusive. The State of Alaska can also
exercise jurisdiction over such disputes. This is so because
villages like Northway presumably do not occupy Indian country, and
federal law suggests that the only bar to state jurisdiction over
Indians and Indian affairs is the presence of Indian country.
Outside Indian country, all disputes arising within the State of
Alaska, whether tribal or not, are within the state's general
jurisdiction. Thus the state, as well as the tribe, can
adjudicate such disputes in its courts. A tribe's inherent
jurisdiction does not give tribal courts priority, or presumptive
authority, in disputes involving tribal members.
Several state and federal courts have also recognized the
existence of concurrent state-tribal jurisdiction over tribal
family law disputes when one or both parents do not reside on
reservation land. For example, in In re Marriage of Skillen, the
Supreme Court of Montana considered whether Montana state courts
had jurisdiction to hear a dispute over the custody of an Indian
child. One of the parties was the child's non-Indian father, who
lived off the reservation. After discussing congressional intent
as revealed in ICWA, the UCCJA, and the Parental Kidnapping
Prevention Act (PKPA) and examining federal case law, the Montana
court determined that tribal courts have exclusive jurisdiction
over children domiciled on reservation land and that "when an
Indian child resides off the reservation, the state court and
tribal court share concurrent jurisdiction." The Skillen court
noted that recognition of concurrent jurisdiction reflected the
delicate balance under federal law of a state court's "obligation
to respect the sovereignty of Indian tribes in relation to [the
court's] responsibility to uphold and enforce the laws of this
state."
Although we base our decision in this case on the
decisions of Congress and the Supreme Court, we, like the Skillen
court, also believe that policy considerations support our
recognition of concurrent jurisdiction. Tribal jurisdiction over
child custody cases involving member children will further the goal
under both federal and state law of best serving the needs of
Native American children.
For example, the fact that many of Alaska's Native
villages are located far from the courtrooms of our state trial
courts limits our state judicial system's ability to respond to the
needs of many Alaska Natives. Moreover, we have recognized that
Alaska is home to "uniquely divergent cultures," including many
"Native cultures which remain today much as they were prior to the
infusion of Anglo-American culture." Because of this great
diversity, barriers of culture, geography, and language combine to
create a judicial system that remains foreign and inaccessible to
many Alaska Natives. These differences have "created problems
in administering a unified justice system sensitive to the needs of
Alaska's various cultures." By acknowledging tribal
jurisdiction, we enhance the opportunity for Native villages and
the state to cooperate in the child custody arena by sharing
resources. Recognizing the ability and power of tribes to resolve
internal disputes in their own forums, while preserving the right
of access to state courts, can only help in the administration of
justice for all.
The continuing existence of concurrent state jurisdiction
also lays to rest a number of the dissent's concerns. Contrary to
the dissent's assertions that "[t]he doors of Alaska's courts will
no longer be open to all Alaskans" and that urban Alaska Natives
will be required to adjudicate their cases in remote villages,
Native parents who live in Anchorage and do not wish to avail
themselves of a distant tribal forum will still be able to resolve
their custody disputes in Anchorage Superior Court. Indeed, Alaska
Natives who for any reason do not wish to have their disputes
adjudicated in a tribal court will retain complete and total access
to the state judicial system. Because state courts retain
concurrent jurisdiction, there is no "mandatory tribal court
jurisdiction."
The existence of concurrent state jurisdiction also
reveals the inapplicability of the dissent's proposed "allocative
principle" to our decision today. Even if there existed an iron-
clad rule that state law must always apply to Natives outside of
Indian land, the outcome we reach today would not violate that
rule. Mescalero teaches that "Indians going beyond reservation
boundaries have generally been held subject to non-discriminatory
state law otherwise applicable to all citizens." The dissent,
citing no persuasive authority, mistakenly attempts to shape this
statement into a rule between competing exclusive jurisdictions.
But because the jurisdiction of Alaska state courts remains
unaffected by our recognition of concurrent tribal court
jurisdiction, the dissent's argument in this regard is essentially
a straw man. Our formulation does not rob the state of its
exercise of judicial power over Alaska Natives; rather, the state
will continue to address these disputes either directly, through
the exercise of concurrent jurisdiction, or indirectly, through the
doctrine of comity.
D. Tribal Law Applies to Child Custody Disputes Adjudicated
by Tribal Courts.
Ms. John and the amici argue that Northway should be able
to apply its own law, including tribal law and custom, in resolving
a custody dispute that falls within its jurisdiction. We agree.
Decisions addressing tribal power to adjudicate internal
matters state that tribes have the "power to make their own
substantive law in internal matters and to enforce that law in
their own forums." Similarly, the Supreme Court has stressed
that tribal sovereignty is valuable precisely because it enables
Native Americans "to control their own internal relations, and to
preserve their own unique customs and social order." Because
Alaska Native tribes have inherent sovereignty to adjudicate
internal tribal disputes, the tribes must be able to apply their
tribal law to those disputes. Thus, tribal sovereignty over issues
like family relations includes the right to enforce tribal law in
resolving disputes.
E. The Doctrine of Comity Properly Governs State Recognition
of Tribal Court Decisions.
We must also determine whether the superior court should
have dismissed Mr. Baker's identical state suit. After examining
whether states should afford tribal court judgments full faith and
credit, we conclude that the comity doctrine provides the proper
framework for deciding when state courts should recognize tribal
court decisions.
1. Full faith and credit
ICWA requires courts to extend full faith and credit to
tribal court decisions involving "child custody proceedings" as
that term is defined by the statute. But, as we stated above,
this parental custody dispute does not qualify as a "child custody
proceeding" under ICWA. Thus, ICWA's full faith and credit
provision does not apply in this case.
Other than ICWA, no federal or state law suggests that
courts should grant full faith and credit to tribal court
judgments. The full faith and credit provision of the federal
constitution applies only to states. As one federal court
recently concluded, nothing in the Constitution's text or in the
debates of the constitutional convention suggests that the framers
believed that the clause would apply to tribes.
Further, federal legislation implementing the
Constitution's Full Faith and Credit Clause has extended its
application only to United States territories and possessions.
Because Congress specifically distinguished between territories
and possessions and Indian tribes in enacting ICWA's full faith and
credit clause, we do not view this legislation as extending the
full faith and credit requirement to tribal judgments.
Similarly, the UCCJA and the PKPA, which require courts
to recognize and enforce certain child custody determinations,
apply only to "states." The two statutes define "state" to mean
a state, territory or possession of the United States, the District
of Columbia, and the Commonwealth of Puerto Rico. Neither of the
statutes' legislative histories contains any evidence suggesting
that the laws apply to Indian tribes. Because ICWA's full faith
and credit provision reveals that Congress does not view Indian
tribes as "states, territories or possessions," the PKPA does not
accord full faith and credit to tribal judgments. And in the
absence of proof that the Alaska legislature specifically intended
the UCCJA to include Indian tribes, we follow the principle of
statutory interpretation instructing that all omissions be treated
as exclusions. We therefore conclude that the UCCJA does not
apply to tribal judgments.
Because no federal or state law applies the full faith
and credit requirement to tribal court decisions, we turn to
consideration of the comity doctrine.
2. Comity
Comity is the principle that "the courts of one state or
jurisdiction will give effect to the laws and judicial decisions of
another state or jurisdiction, not as a matter of obligation, but
out of deference and mutual respect." The comity doctrine
governs the recognition afforded by courts in the United States to
judgments of foreign nations. Comity "is neither a matter of
absolute obligation, on the one hand, nor of mere courtesy and good
will, upon the other." Although Indian tribes, as domestic
dependent nations, differ from foreign countries, we agree with the
Ninth Circuit that comity affords the best "analytical framework
for recognizing tribal judgments." Numerous state courts have
reached the same conclusion. We therefore hold that, as a
general rule, our courts should respect tribal court decisions
under the comity doctrine.
In certain limited circumstances, however, state
recognition of tribal judgments may be inappropriate. We conclude,
as did the Ninth Circuit, that our courts should refrain from
enforcing tribal court judgments if the tribal court lacked
personal or subject matter jurisdiction. A requirement that a
tribal court possess personal jurisdiction over litigants appearing
before it ensures that the tribal court will not be called upon to
adjudicate the disputes of parents and children who live far from
their tribal villages and have little or no contact with those
villages.
We also agree with the Ninth Circuit that state courts
should afford no comity to proceedings in which any litigant is
denied due process. In deciding whether tribal court proceedings
complied with due process, courts should consider whether the
parties received notice of the proceedings and whether they were
granted a full and fair opportunity to be heard before an impartial
tribunal that conducted the proceedings in a regular fashion.
An indication that the judiciary was dominated by the opposing
litigant would suggest that due process had been violated.
But this due process analysis in no way requires tribes
to use procedures identical to ours in their courts. The comity
analysis is not an invitation for our courts to deny recognition to
tribal judgments based on paternalistic notions of proper
procedure. Instead, in deciding whether a party was denied due
process, superior courts should strive to respect the cultural
differences that influence tribal jurisprudence, as well as to
recognize the practical limits experienced by smaller court
systems.
Additionally, superior courts should not deny recognition
to tribal judgments simply because they disagree with the outcome
reached by the tribal judge or because they conclude that they
could better resolve the dispute at issue. Thus, suggesting --
as the superior court did in this case -- that state jurisdiction
was proper because "significant expertise will be required to
resolve this difficult dispute," has no place in a comity analysis.
Although the comity analysis is not an invitation for
superior courts to disregard tribal decisions with which they
substantively disagree, the comity analysis, when properly applied,
does allow state courts to refuse to enforce a tribal order that
"is against the public policy of the United States or the forum
state in which recognition is sought." This aspect of the comity
analysis should lay to rest the dissent's concern that our decision
today will open the floodgates to tribal decisions that are
fundamentally inconsistent with the public policies underlying
Alaska law. But we would ignore the fundamental meaning of
sovereignty and insult tribal systems of justice to reason that
because tribal law is different it is inferior.
3. Applying the comity doctrine in this case
Mr. Baker argues that the superior court should decline
to recognize Judge Titus's decision under the comity doctrine for
two reasons. First, he contends that because his children are
members of Mentasta Village, rather than Northway Village, the
tribal court lacked subject matter jurisdiction over the dispute.
Second, he maintains that Northway's tribal court system does not
comport with due process because it does not provide appellate
procedures.
The superior court never had the opportunity to address
these arguments through the framework of the comity doctrine as we
have outlined it above. Further, we are unable to resolve these
claims because the record on appeal contains no information about
the tribal membership of the children or the review procedures
available in the Northway Tribal Court. We therefore remand to the
superior court to allow it to consider Mr. Baker's claims in its
application of the comity doctrine.
We would, however, like to provide the superior court
with guidance in resolving these claims. First, although this is
not an ICWA case, we conclude that ICWA provides the most
appropriate test for deciding when a tribal court has subject
matter jurisdiction over a particular custody dispute. Under ICWA,
the relevant factor is the child's tribe. Thus, we agree with
Mr. Baker that the Northway court had jurisdiction over this case
only if the children are members or are eligible for membership in
the village. In determining the children's membership status, the
superior court should apply tribal law.
Second, we do not decide in this appeal whether due
process requires tribal courts to provide an appellate or review
process. The parties have not fully briefed this issue, and we
suspect that conflicting authority exists. Although the
Restatement of Foreign Relations Law suggests that foreign courts
must provide access to review in order to comport with due
process, the Supreme Court has held that due process does not
require state court systems to provide an appellate system. If
the superior court finds on remand that Northway Village does not
have an appeal or review system, it will need to determine, after
detailed briefing, whether the absence of such a system violates
due process.
IV. CONCLUSION
Tribal courts in Alaska have jurisdiction to adjudicate
custody disputes involving tribal members. This jurisdiction is
concurrent with that of the state courts. We therefore REVERSE and
REMAND to the superior court to determine whether the tribal
court's resolution of the custody dispute between Ms. John and Mr.
Baker should be recognized under the doctrine of comity.
MATTHEWS, Chief Justice, joined by COMPTON, Justice, dissenting.
TABLE OF CONTENTS
I. Introduction 62
II. Historical Setting 65
III. How This Case Should Be Decided 75
IV. Summary of the Majority's Reasoning 78
V. The Allocative Principle of State and Tribal Power 81
A. The Allocative Principle Is a Fundamental Component of
American Indian Law 81
B. The Supreme Court Has Traditionally Viewed Whether or Not
a Case Arose in Indian Country as a Threshold Issue 89
C. Indian Country as a Jurisdictional Concept Encompasses
Tribal Power over Both Tribal Lands and Members 91
D. The Majority's Decision Is Internally Inconsistent with
Regard to the Importance of a Territorial Basis for
Tribal Court Jurisdiction 93
VI. Indian Country Is a Prerequisite for the Exercise of Tribal
Court Adjudicatory Authority 96
A. The Supreme Court Has Never Held that a Tribe's Inherent
Powers Can Be the Basis for Exercising Tribal
Adjudicatory Authority Outside of Indian Country 96
B. At Least Two of the Inherent Powers Recognized in United
States v. Wheeler Do Not Extend Beyond Indian Country 98
1. A Tribe's Inherent Power to Criminally Sanction Its
Members Does Not Extend Outside of Indian Country 99
2. A Tribe's Inherent Power to Regulate Domestic
Relations Among Members Does Not Extend to Cases
Arising Outside of Indian Country 102
C. DeCoteau 103
D. Fisher 108
1. Fisher's Language Does Not Support Jurisdiction
Outside Indian Country 110
2. Iowa Mutual's Citation to Fisher Does Not
Persuasively Reinterpret Fisher's Meaning 114
3. Fisher Does Not Concern Concurrent State
Jurisdiction 117
E. Other Case Law 118
VII. Executive and Statutory Authority Relied on by the Majority 121
A. Executive Advocacy as to the Extent of Tribal Court
Jurisdiction Is Not Entitled to Special Deference 122
B. Statutory Analysis 123
1. The Canon of Construction Favoring Native Americans
Is Inapplicable to This Case 124
2. ANCSA 125
3. The Tribe List Act 127
4. The Tribal Justice Act 129
5. The Indian Child Welfare Act (ICWA) 130
a. ICWA Should Not Be Extrapolated 130
b. The Majority Decision Ignores Essential
Protections Which Congress Built into ICWA 133
VIII. Even Assuming that Tribal Courts Have Inherent Sovereign
Power to Hear Child Custody Cases Not Arising in Indian
Country, the Majority Decision Is Still Erroneous Because
It Enables a Tribal Court to Utilize this Power Over a
Non-Tribal Member 136
A. Case Law: Tribal Inherent Sovereignty Powers Relate Only
to Tribal Members 136
B. The Montana Exceptions Do Not Apply 139
C. The Absence of Subject Matter Jurisdiction Cannot Be
Waived 141
D. Tribal Court Jurisdiction Over Nonmembers Denies Access
to State Courts on the Basis of an Unpermitted Racial
Classification 142
IX. Court-developed Policy Arguments are an Inappropriate Basis
Upon Which to Base Tribal Court Jurisdiction 144
X. State Law Applies Outside Indian Country 147
A. Case Law 148
B. Section 4 of Public Law 280 Requires that the Laws
Applied in Tribal Court Must be Consistent with State
Law 150
C. The Rationale of Erie v. Tompkins 153
XI. Conclusion 155
Addendum: P.L. 280 History and Analysis 160
I. Introduction tc \l1 "I. Introduction
Does inherent tribal jurisdiction over custody cases
extend beyond Indian country? The majority answers "yes,"
concluding that tribal sovereignty prevails unless Congress
provides otherwise. My answer is "no." Under established
principles of federal Indian law, state law governs outside of
Indian country unless Congress provides otherwise, and it has not
so provided. Moreover, the United States Supreme Court has twice
held that inherent tribal jurisdiction over custody applies only to
cases arising within Indian country.
Today's opinion changes Alaska society. Alaska law no
longer applies to every Alaskan. The doors of Alaska's courts will
no longer be open to all Alaskans. More than one-sixth of Alaskan
children,1 regardless of where they reside, will be subject to the
laws of one of 226 village tribal organizations. More than one-
sixth of Alaskan adults,2 regardless of where they reside, will be
subject to the domestic relations laws of one of 226 village tribal
organizations. These laws, written or unwritten, may be different
from the laws of the state, indeed they may conflict with the laws
of the state. But their reach will be statewide, and even beyond,
governing cases that arise in cities, towns, and villages which may
be hundreds of miles from the village whose tribal laws are
applied. And the family law cases of more than one out of six
Alaskan children and adults now will be subject to adjudication not
in the Alaska Court System, but in the tribal courts of one of 226
villages. Some tribal court cases will be decided fairly. Others
will not be. But the only remedy Alaskans aggrieved by the
application of conflicting laws or unfair decisions will have is to
pursue "comity" litigation in the state courts. Relief through
this vague doctrine will be uncertain, hard to obtain, and
expensive.
Because today's opinion takes a long step away from the
Alaska constitutional goal of equal rights under the law and is
contrary to federal law, I dissent. Given the importance of this
case to the future of Alaska's system of justice, I set forth my
views in greater length than is normally required or appropriate in
a dissenting opinion.
Today's opinion holds:
(1) That tribal courts have jurisdiction, based on
inherent sovereignty, to adjudicate child custody cases which
arise outside of Indian country, involving children who are either
tribal members or eligible for tribal membership. Such cases
involve custody disputes between parents who are tribal members,
and between parents when only one parent is a tribal member. The
majority also holds that a child's eligibility for tribal
membership, taken alone, is a sufficient basis for the assertion of
jurisdiction.3 Thus, any custody dispute involving a child
eligible for tribal membership, regardless of the membership status
of the adult parties, will fall within the coverage of the opinion.
(2) That when tribal courts decide custody disputes,
tribal law controls even where it is inconsistent with state law.4
(3) And that Public Law (P.L.) 280,5 which grants Alaska
exclusive jurisdiction of private civil cases arising in Indian
country, does not apply to this case.6
I disagree with the first two conclusions for reasons
developed at length in this dissent.
With respect to the third conclusion, regarding P.L. 280,
my observations are as follows. P.L. 280 grants the State of
Alaska criminal and civil jurisdiction over cases arising in Indian
country. We have held that P.L. 280 grants Alaska exclusive,
rather than merely concurrent jurisdiction.7 The appellant and the
amici in this case argue that these holdings are wrong and that
tribes have concurrent jurisdiction. Most of their briefing is
devoted to this point. P.L. 280, however, focuses on cases arising
in Indian country,8 and the present case does not arise in Indian
country. Why then the concern with P.L. 280? The appellant and
the amici recognize that Congress could not have intended tribes to
have more power outside of Indian country than within Indian
country. Thus if Alaska has exclusive jurisdiction to decide
private custody cases which arise in Indian country, it has, by
necessary implication, exclusive jurisdiction to decide private
custody cases which arise outside of Indian country.
Since the majority opinion has not overruled our P.L. 280
cases, it might be sufficient for me to observe that one
independent reason why the opinion is wrong is that it conflicts
with this necessary implication. But in order to fully answer the
arguments of the appellant and the amici concerning P.L. 280 I set
forth my views on this issue in an addendum to this opinion. There
I explain that our previous cases9 were properly decided, and that
P.L. 280 grants Alaska exclusive jurisdiction over private child
custody cases arising in Indian country.
II. Historical Setting tc \l1 "II. Historical Setting
In the body of this dissent, I take direct issue with the
majority's conclusion that tribal courts have jurisdiction to hear
child custody cases not arising in Indian country. To set the
context of this case, I begin with a brief statement of the history
of Government-Native relations in Alaska. Without such a statement
one might assume, based on the majority opinion, that before the
Alaska Native Claims Settlement Act (ANCSA) tribes were
"adjudicat[ing] domestic disputes between members," and that I am
arguing that Congress in passing ANCSA in 1971 intended to
"eradicate tribal court jurisdiction over family law matters."10
Neither assumption would be correct.
Beginning with the assumption of jurisdiction over Alaska
by the United States in 1867, throughout Alaska's history as a
territory, and since statehood in 1959, Alaska Natives have always
been subject to the same laws as non-Natives.11 These laws have
always been administered only by territorial and state courts open
to Native and non-Native alike. Thus Congress, in passing ANCSA in
1971, did not focus on tribal court jurisdiction because tribal
courts had played no significant role in Alaska's legal history.
The history of Government-Native relations in Alaska has
been recounted in detail in Native Village of Stevens v. Alaska
Management & Planning,12 and Metlakatla Indian Community, Annette
Island Reserve v. Egan.13 I will refer here mainly to the
conclusions that we have drawn from this history, rather than to
the details on which the conclusions are based.
We stated in Native Village of Stevens that "the history
of the relationship between the federal government and Alaska
Natives up to the passage of the Alaska Indian Reorganization Act,
49 Stat. 1250 (1936) indicates that Congress intended that most
Alaska Native groups not be treated as sovereigns."14 "[N]either
the Alaska Indian Reorganization Act, nor subsequent Congressional
acts have signaled a change from non-sovereign to sovereign
status."15 We supported this conclusion with a detailed examination
of court decisions and enactments of Congress and the Territorial
Legislature, all indicating that Alaska Natives were governed by
general rather than tribal law.16 We noted that a proviso of the
Alaska Indian Reorganization Act of 1936 (IRA) which was applicable
to most Alaska Native groups explicitly stated that they had not
been recognized as tribes.17 We reiterated the following points by
quoting from our earlier Metlakatla opinion:
The United States has never entered into any
treaty or similar type agreement with any
group of Indians in Alaska. None of the
Indians of appellant communities have ever
been exempt from taxation by the Territory or
State of Alaska. Crimes committed by Indians
in Alaska have always been punished by the
territorial and state courts. . . . There are
not now and never have been tribes of Indians
in Alaska as that term is used in federal
Indian law. No Indian tribe, independent
nation or power has been recognized in
Alaska.[18]
We also noted in Native Village of Stevens that a section
of the Alaska IRA authorized the Secretary of the Interior to
designate as reservations areas of land which had previously been
reserved by executive order for the use and occupancy of Alaska
Natives or which were actually occupied by them.19 Some
reservations were so designated.20 These reservations, and the
earlier reserves that were not designated as reservations, clearly
meet the definition of "Indian country" codified in 1948 in 18
U.S.C. 1151(b) as "dependent Indian communities." But they were
not thought to be areas beyond the reach of state law.21
This assumption was challenged in 1957 in the case of In
re McCord.22 That case involved the prosecution for statutory rape
of two Natives who resided, and committed their alleged offenses,
on a reserve created by executive order encompassing the village of
Tyonek. Tyonek had been issued a constitution under the Alaska
IRA. The defendants contended that Tyonek was Indian country and
was thus beyond the reach of the laws of the Territory of Alaska
and that the federal act extending certain federal crimes to Indian
country did not apply to statutory rape.23 Territorial District
Court Judge McCarrey accepted these arguments and dismissed the
charges against the defendants.24
While the McCord decision disturbed conventional
assumptions and threatened to leave a law enforcement void at least
on those reserves which were occupied by villages which had IRA
constitutions, its immediate effects were short-lived. Within a
year Congress had added the Territory of Alaska to the list of
states governed by P.L. 280.25 This action, taken in response to
the McCord decision, extended the criminal and civil laws of the
territory to Indian country under the administration of the
territorial courts.26
This was the historical setting in 1971 when ANCSA was
passed revoking all reservations except Metlakatla. Native
sovereignty issues, tribal law, and tribal court jurisdiction were
not within the scope of ANCSA.27 Alaska law was thought to apply
to all Alaskans, both Native and non-Native, and the cases of all
Alaskans were decided in Alaska courts.28 The assumption of
Congress and the Department of the Interior in 1971 was that P.L.
280 granted exclusive jurisdiction to the state.29 And Alaska
Native villages had not received formal recognition as tribes.
But three developments of considerable legal significance
took place after the passage of ANCSA. First, in the mid-1970's
the Department of Interior reversed its field and decided P.L. 280
was a grant of concurrent rather than exclusive jurisdiction to the
states.30 This view was adopted by the Ninth Circuit in Native
Village of Venetie I.R.A. Council v. Alaska (Venetie IRA).31
Second, the Interior Department in 1993 through Assistant
Secretary Deer administratively recognized 226 Alaska Native
villages as sovereign tribes.32
And third, the Ninth Circuit in Alaska ex rel. Yukon
Flats School District v. Native Village of Venetie Tribal
Government (Venetie I),33 ruled that at least some land conveyed
under ANCSA qualified as Indian country.
The conjunction of these events promised to have
significant and potentially enormous consequences. More than
forty-four million acres (an area about the size of the State of
Washington) were conveyed under ANCSA. Since virtually every
Native village recognized as sovereign by Secretary Deer received
an ANCSA conveyance, Alaska might have contained 226 semi-
autonomous nations. State functions spanning a broad spectrum of
criminal and civil laws might have been transferred to the villages
within these enclaves.
This then was the setting in 1998 when the United States
Supreme Court decided Alaska v. Native Village of Venetie Tribal
Government (Venetie II).34 In that case the tribal government
sought to impose about $161,000 in taxes covering commercial
activities within the tribal village on a contractor building a
state school on tribal lands transferred under ANCSA.35 The Ninth
Circuit had noted that the ultimate question -- "whether Venetie
has the authority to tax activities occurring within its territory
-- turns on whether Venetie occupies Indian country".36 The circuit
court had concluded that Venetie's ANCSA lands were Indian
country.37
The United States Supreme Court reversed, holding that a
tribe's ANCSA lands are not Indian country.38 Referring to the
"dependent Indian communities" definition in 18 U.S.C. 1151(b),
the Court held that a two-part test applied. The lands must have
been set aside by the federal government for the use of Indians as
Indian land, and the lands must be under continuing federal
superintendence.39 Neither part of the test was met with respect
to ANCSA lands.40 ANCSA revoked all reservations in Alaska except
Metlakatla and transferred lands to private state-chartered Native
corporations without restraints on alienation. And instead of
continuing federal superintendence, one objective of ANCSA was to
avoid a "lengthy wardship or trusteeship."41
The Supreme Court's decision in Venetie II meant that
there would not be numerous reservation-like enclaves in Alaska.
But in some ways the majority's decision today will have broader
consequences than an affirmance of the Ninth Circuit's Venetie I
decision would have had. If there were Indian country enclaves,
tribal jurisdiction would be confined to the enclaves. But without
the geographical limits of enclaves, under today's decision tribal
jurisdiction extends statewide, and beyond. It follows tribal
members, children eligible for membership, and their parents
wherever they reside.
III. How This Case Should Be Decided tc \l1 "III. How This Case
Should Be Decided
Before turning to a critique of the majority's reasoning
I will state in affirmative form how I think this case should be
decided. Appellant claims, and the majority concludes, that
Northway has inherent sovereignty to regulate domestic relations
among members.42 Tribes unquestionably have certain powers which
derive from inherent sovereignty. For example, as the majority
notes, tribes have the power to regulate the conduct of members
through criminal laws, they have the power to determine their own
membership, they have power over the domestic relations of their
members, they have the power to prescribe and enforce rules of
inheritance for their members, and they have the power to tax.43
But do all, or any, of these powers extend beyond Indian country?
Specifically, the question in this case is: Does the adjudicatory
power to decide the custody disputes of parents whose children are
tribal members apply to cases not arising in Indian country?
This is a question of federal law. But there is no need
to search the reports of the lower federal courts for an answer.
The United States Supreme Court has answered it, twice. The
answer is that a tribe's inherent power to adjudicate the custody
cases of tribal children does not extend to cases not arising in
Indian country.
In DeCoteau v. District County Court,44 the Court
recognized that tribal court jurisdiction would not apply to
custody proceedings involving Indian children not residing in
Indian country. Because the reservation where the parent and
children resided had been terminated, the state court rather than
the tribal court had jurisdiction.45
In Fisher v. District Court,46 the Court upheld tribal
court jurisdiction over children in a dispute concerning whether a
state court or a tribal court had jurisdiction, because "all
parties resided on the reservation at all relevant times."47 The
court stated that as between state and tribal courts "it is
appropriate to predicate jurisdiction on the residence of the
litigants."48
Thus DeCoteau and Fisher unequivocally teach that a
tribe's inherent power over child custody cases is limited to cases
arising in Indian country.
It is no coincidence that the Supreme Court in making the
allocative decision involved in Venetie II cited Footnote 2 of
DeCoteau. The Court in Venetie II stated: "Although this
definition [of Indian country] by its terms relates only to federal
criminal jurisdiction, we have recognized that it also generally
applies to questions of civil jurisdiction such as the one at issue
here. See DeCoteau v. District County Court for Tenth Judicial
Dist., 420 U.S. 425, 427 n.2 (1975)."49 Footnote 2 of DeCoteau,
cited by the Court in Venetie II, supplies the complete answer to
the present case:
If the lands in question are within a
continuing "reservation," jurisdiction is in
the tribe and the Federal Government . . . .
On the other hand, if the lands are not
within a continuing reservation, jurisdiction
is in the State, except for those land parcels
which are "Indian allotments, the Indian
titles to which have not been extinguished
. . . . While 1151 is concerned, on its
face, only with criminal jurisdiction, the
Court has recognized that it generally applies
as well to questions of civil jurisdiction."[50]
DeCoteau and Fisher are specific examples of what I refer
to as the "allocative principle" -- the basic principle allocating
government responsibilities as between states and tribes. The
allocative principle holds that within Indian country state laws
are generally not applicable to tribal Indians unless Congress has
explicitly provided for their application, while outside of Indian
country tribal authority generally does not apply unless Congress
has clearly expressed that tribal authority should apply.51
Congress has not provided for tribal jurisdiction in child custody
disputes between the parents of Indian children arising outside of
Indian country. Therefore based on the general allocative
principle, as well as on its specific application to child custody
cases in DeCoteau and Fisher, the Northway tribal court does not
have jurisdiction in this case.
IV. Summary of the Majority's Reasoning tc \l1 "IV. Summary of
the Majority's Reasoning
The rationale of the majority can be expressed in two
syllogisms. The first is as follows:
(1) Tribal sovereignty exists (apparently wherever it is
asserted) unless Congress has expressly and unambiguously divested
the tribe of sovereignty in the type of case at issue.52
(2) Congress has not expressly and unambiguously divested
Alaska tribes of child custody jurisdiction in cases arising
outside of Indian country.53
(3) Therefore Alaska tribes have custody jurisdiction in
cases arising outside of Indian country.
As support for the conclusion reached by this syllogism
and as an independent but related rationale the majority also
relies on the following second syllogism:
(1) Through the Tribe List Act and Tribal Justice Act,
Congress has ratified the Secretary of the Interior's recognition
of Alaska tribes as sovereigns, and as sovereigns, they have
inherent authority to establish their own forms of government
including tribal justice systems.54
(2) Unless tribes that do not occupy Indian country have
"inherent powers of self-governance," including the power to
adjudicate child custody disputes, their sovereignty would be
"virtually meaningless."55
(3) As Congress did not intend tribal sovereignty to be
virtually meaningless, it must have empowered tribes that do not
occupy Indian country to exercise inherent powers of self-
governance, including child custody jurisdiction, outside of Indian
country.56
These syllogisms are flawed. In particular the first
premise of the first syllogism is wrong because it ignores the
basic principle for the allocation of state and tribal functions.
Outside of Indian country state laws apply to Indians unless
Congress explicitly provides otherwise. Thus, outside of Indian
country the premise should not be that tribal sovereignty applies
unless Congress provides otherwise, but that state sovereignty
applies unless Congress provides otherwise.
The second syllogism is wrong in several respects. In
particular, the second premise treats all the inherent tribal
powers of self-government alike. In fact, some inherent powers
might be effective outside of Indian country, but others definitely
are not. Supreme Court case law is clear that, for example, the
power to regulate the conduct of tribal members toward each other
through the criminal law does not extend beyond Indian country.57
Equally clear is Supreme Court case law that the power to
adjudicate child custody cases does not extend beyond Indian
country.
Further, the second premise of the second syllogism is
wrong in asserting that sovereignty would be "virtually meaning-
less" unless tribes which do not occupy Indian country have all the
inherent powers of self-government. Indian country is an important
limiting factor, but tribes without it still have the inherent
power to determine their own forms of organization and membership.58
Further, tribes have such powers as are delegated them by
Congress. Tribal powers under the Indian Child Welfare Act are an
important example of delegated powers that involve the need to use
tribal justice systems. Other powers may be delegated in the
future, as needed in the judgment of Congress. Tribes outside of
Indian country are also eligible for special programs and services
provided to Indians by the federal government, many of which
involve tribal administration of federal grants. Also, such tribes
have sovereign immunity. Thus tribal sovereignty for tribes that
do not occupy Indian country is not meaningless.
Finally, the conclusion of the second syllogism that
Congress must have wanted tribes that do not occupy Indian country
to exercise all the powers of inherent self-government outside of
Indian country is demonstrably wrong, for Congress's intent was to
treat all tribes equally, and Indian country is a limiting factor
on the authority of all tribes.59 Some tribes outside of Alaska
also have lost most of their Indian country, and occupy, like
Northway, only scattered allotments -- yet their authority is
limited by the allocative principle. The tribe in DeCoteau is one
example.
V. The Allocative Principle of State and Tribal Power tc \l1
"V. The Allocative Principle of State and Tribal Power
A. The Allocative Principle Is a Fundamental Component of
American Indian Law tc \l2 "A. The Allocative
Principle Is a Fundamental Component of American Indian
Law
Despite the complexities of the numerous Supreme Court
decisions addressing the extent of tribal power with respect to the
states, most of these cases either explicitly or implicitly address
two issues: (1) whether the litigants and the activity giving rise
to the dispute are based in Indian country, and (2) whether there
is an act of Congress which expressly supports the particular
exercise of state or tribal power.
These two issues are important because, as the Supreme
Court stated in Bryan v. Itasca County, the general rule is that
"State laws generally are not applicable to tribal Indians on an
Indian reservation except where Congress has expressly provided
that state laws shall apply."60 By contrast, outside of Indian
country the "general rule" is that tribal authority does not apply,
unless there is a clear congressional expression that it should.
As the Supreme Court stated in Oklahoma Tax Commission v.
Chickasaw Nation, "'express federal law to the contrary' overrides
the general rule that 'Indians going beyond reservation boundaries
have generally been held subject to nondiscriminatory state law
otherwise applicable to all citizens of the State.'"61
In Mescalero Apache Tribe v. Jones,62 the Supreme Court
made it clear that this is a firmly established principle of
American Indian law that dates back to the 19th century:
[T]ribal activities conducted outside the
reservation present different considerations.
"State authority over Indians is yet more
extensive over activities . . . not on any
reservation." Organized Village of Kake [v.
Egan], 369 U.S. [60, 75 (1962)]. Absent
express federal law to the contrary, Indians
going beyond reservation boundaries have
generally been held subject to non-
discriminatory state law otherwise applicable
to all citizens of the State. See, e.g.,
Puyallup Tribe v. Department of Game, 391 U.S.
392, 398 (1968); Organized Village of Kake,
supra, 369 U.S. at 75-76; Tulee v. Washington,
315 U.S. 681, 683 (1942); Shaw v. Gibson-
Zahniser Oil Corp., 276 U.S. 575 (1928); Ward
v. Race Horse, 163 U.S. 504 (1896).[63]
Mescalero Apache Tribe also leaves little doubt that the
"principle" it describes is a broad one: "That principle is as
relevant to a State's tax laws as it is to state criminal laws, see
Ward v. Race Horse, supra, at 516, and applies as much to tribal
ski resorts as it does to fishing enterprises. See Organized
Village of Kake, supra."64
Secondary sources have also recognized the existence and
importance of the allocative principle. For example, the American
Indian Law Deskbook, which is a treatise compiled by the Conference
of Western Attorneys General, states:
Determining the presence of Indian country is
the benchmark for approaching the allocation
of federal, tribal, and state authority with
respect to Indians and Indian lands. . . .
[T]he Supreme Court has employed [the Indian
country definition] to determine the
geographical reach of the special Indian law
rules governing preemption of state law in
civil contexts. Thus the "Indian country"
definition is relevant to virtually every
aspect of Indian law unless displaced by
another statutory formulation of geographical
coverage.65
The discussion of "Preemption in Indian Law" in Federal Indian
Law,66 is also an analysis of the allocative principle. Most of the
discussion concerns the "within Indian country" aspect of the
principle, because this aspect has received more attention
recently. As to the "outside of Indian country" aspect of the
allocative principle, this text states:
Preemption can occur in off-reservation
contexts also, but the approach is different:
state law applies to off-reservation Indian
activities unless there is "express federal
law to the contrary." Examples of such
express laws are treaties reserving off-
reservation fishing rights.[67]
Thus, the Supreme Court and Indian law scholars and
practitioners have consistently recognized the allocative principle
and its centrality in federal Indian law jurisprudence.
In its recent Venetie II decision, the United States
Supreme Court once again emphasized the allocative principle, this
time in the context of Alaska Natives. Despite the fact that the
power to tax is one of a tribe's inherent powers of self-
government,68 the Supreme Court applied the allocative principle and
held that the Venetie tribe did not have the power to levy the tax
in question because it was being imposed on an activity on tribal
lands outside of Indian country.69 The Court expressed the
allocative principle by first citing Footnote 2 of DeCoteau.70 The
Court then stated: "Generally speaking, primary jurisdiction over
land that is Indian country rests with the Federal Government and
the Indian tribe inhabiting it, and not with the States. See,
e.g., South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998)."71
The part of the Yankton Sioux opinion cited by the Venetie II
Court states: "If the divestiture of Indian property . . . effected
a diminishment of Indian territory, then the ceded lands no longer
constitute 'Indian country' as defined by 18 U.S.C. 1151(a) and
the State now has primary jurisdiction over them."72
This general rule, with its presumption in favor of state
authority outside of Indian country, clearly applies to the present
case. The critical issue here, as in Venetie II and DeCoteau, is
whether a tribe can exercise one of its inherent powers outside of
Indian country. Nevertheless, the majority ignores this bedrock
principle of Indian law jurisprudence in deciding the issue.
Instead of beginning with the premise that state law
applies and asking, as the allocative principle requires in cases
arising outside of Indian country, whether there is an act of
Congress which is in conflict with the assertion of state
authority, the majority reverses the principle and begins with the
premise that tribal authority applies and asks whether Congress has
expressly divested the tribe of jurisdiction in this situation.73
The majority does this by claiming that Montana v. United States74
"reconciled" the allocative principle, as stated in Mescalero, with
"the general rule that tribal sovereignty exists unless
specifically divested" by Congress.75 The implication is that the
Montana Court somehow changed the meaning and scope of the
allocative principle, and because of this "reconciliation" the
majority claims that "the [Supreme] Court has not focused on tribal
land as determinative of tribal authority."76 This reasoning is
simply wrong. As recently as 1995, the Supreme Court referred to
the allocative principle as a "general rule" of Indian law
jurisprudence.77
Moreover, contrary to the majority's assertions, Montana
did not water down what Mescalero's expression of the allocative
principle meant.78 Rather, Montana cited Mescalero for the
proposition that "even on reservations, state laws may be applied
unless such application would interfere with reservation self-
government."79 This statement adds meaning in favor of state power
to the "within Indian country" aspect of the allocative principle,
but it does nothing to change the meaning of the allocative
principle applied outside of Indian country. This is clear from
the text of Mescalero, because almost immediately after Mescalero
makes the statement quoted in Montana, the Court goes on to state
the "outside of Indian country" portion of the allocative
principle: "But tribal activities conducted outside the
reservation present different considerations. . . . Absent express
federal law to the contrary, Indians going beyond reservation
boundaries have generally been held subject to non-discriminatory
state law otherwise applicable to all citizens of the State."80
Thus, contrary to the majority's assertions, Montana, a case about
tribal power over nonmembers on a reservation, does not change the
allocative principle's presumption in favor of state authority
outside of Indian country.
As noted, the majority's failure to apply the allocative
principle leads the majority to proceed from the wrong premise.
This, in turn, leads to the erroneous decision in this case.
Despite over 100 years of Supreme Court precedent reflecting the
allocative principle, the majority goes so far as to state that
"whether [a] tribe is located in Indian country" is not a "key
inquiry" in cases delineating the extent of tribal jurisdictional
power.81 Such a statement in view of numerous Supreme Court
decisions to the contrary turns a blind eye on controlling legal
precedent.
B. The Supreme Court Has Traditionally Viewed Whether or Not
a Case Arose in Indian Country as a Threshold Issue tc
\l2 "B. The Supreme Court Has Traditionally Viewed
Whether or Not a Case Arose in Indian Country as a
Threshold Issue
Contrary to the majority's claim, the Supreme Court has
not only viewed whether or not a case arose in Indian country as an
important inquiry in cases delineating tribal jurisdiction, the
Court has traditionally treated such an inquiry as the threshold
issue upon which the outcome of the case turns. For example, in
McClanahan the Court stated: "It may be helpful to begin our
discussion of the law applicable to this complex area with a brief
statement of what this case does not involve. We are not here
dealing with Indians who have left or never inhabited reservations
set aside for their exclusive use . . . ."82
Also, in Organized Village of Kake, a case involving
Native Alaskans, the first issue the Court addressed was the status
of the land upon which the dispute arose: "The situation here
differs from that of the Metlakatlans in that neither Kake nor
Angoon has been provided with a reservation."83 Because the tribe
did not reside in Indian country, and there existed no "statutory
authority under which the Secretary of the Interior might permit
[Kake] to operate fish traps contrary to state law," the Court held
that Alaska's fishing laws applied to the tribe.84
Likewise in Venetie II the first, and only, question
which the Supreme Court addressed was whether the tribal lands on
which the taxed activity took place were within Indian country.85
Since the answer was "no" the tribe's inherent power to tax could
not be exercised.86
Similarly, in DeCoteau the Supreme Court affirmed state
court jurisdiction over Indian children in a custody proceeding
because, as the court held, the case arose on land that no longer
was Indian country. Jurisdiction was exclusive.87 In Indian
country the state would have no jurisdiction, outside Indian
country the tribe would have no jurisdiction.88 The Supreme Court's
introductory language makes it clear that whether or not the land
was Indian country was the threshold issue upon which the outcome
of the case rested: "We hold, for the reasons that follow, that
[Congress] terminated the Lake Traverse Reservation, and that
consequently the state courts have jurisdiction."89
C. Indian Country as a Jurisdictional Concept Encompasses
Tribal Power over Both Tribal Lands and Members
tc \l2 "C. Indian Country as a Jurisdictional Concept
Encompasses Tribal Power over Both Tribal Lands and Members
As the above discussion of the allocative principle makes
clear, Indian country as a jurisdictional concept encompasses
tribal power over both tribal lands and tribal members.
Remarkably, the majority takes issue with this fundamental and
settled principle of Indian law. The majority states that the
Supreme Court in Venetie II "makes clear that any allocative
significance that exists in the concept of Indian country pertains
to a tribe's territorial power over its land, not its members."90
The majority comes to this conclusion, which is at odds with over
100 years of Supreme Court precedent,91 by reasoning that because
the Supreme Court in Venetie II "not[ed] that tribes have 'primary
jurisdiction over land that is Indian country' but [said] nothing
about jurisdiction over members" there is no "allocative
significance . . . in the concept of Indian country" with regard to
questions of tribal jurisdiction over tribal members.92 This
conclusion has no basis in Indian law jurisprudence.
The Supreme Court in Venetie II "[said] nothing about
jurisdiction over members"93 for the simple reason that
"jurisdiction over members" was not an issue in Venetie II.
Whether Venetie's ANCSA-granted lands were Indian country and
whether Venetie could exercise its inherent power to tax nonmembers
on its lands located outside of Indian country were the issues in
that case. Nevertheless, according to the majority's logic, if a
specific Supreme Court decision, for example, said that all federal
courts must obey Supreme Court precedent, the majority would reason
that state courts could ignore Supreme Court precedent because the
Court's decision did not mention state courts. The Supreme Court's
silence on a subject that is not at issue in a case is just that --
silence -- not some kind of implied legal pronouncement. The
Supreme Court itself has recently criticized the type of faulty
reasoning in which the majority engages.94
Moreover, numerous Supreme Court cases reveal just how
mistaken the majority's conclusion is that Indian country is not
relevant to the issue of whether a tribe has jurisdictional power
over its own members.95 In each of these cases, the existence of
Indian country was the central factor in determining whether the
tribe had jurisdictional authority over its members.
D. The Majority's Decision Is Internally Inconsistent with
Regard to the Importance of a Territorial Basis for
Tribal Court Jurisdiction
tc \l2 "D. The Majority's Decision Is Internally Inconsistent
with Regard to the Importance of a Territorial Basis for Tribal
Court Jurisdiction
As the above discussion shows, there is substantial
Supreme Court authority establishing the allocative principle and
the importance of Indian country in delineating state and tribal
jurisdictional authority. Because this authority undercuts the
basis for the majority's decision, the majority spends much effort
arguing that Indian country is not relevant or needed for tribal
court jurisdiction over members.96
Ironically, the majority, at the end of its opinion,
impliedly acknowledges the need for a territorial and geographical
basis for jurisdiction in cases like the present one. In its
discussion of comity, the majority states that state courts should
not recognize tribal court judgments if the tribal court lacked
personal jurisdiction.97 But personal jurisdiction is an inherently
territory-based concept, involving contact with a forum state -- a
geographical entity.98 Thus, the majority opinion says that the
proper exercise of tribal court jurisdiction is not dependent on
the territorial concept mandated by federal Indian law, Indian
country, but it is dependent on some form of territorial nexus.
The majority does not explain how lower courts should
apply its new personal jurisdiction concept. The idea of personal
jurisdiction relates to a defendant's contacts with a forum state.99
In cases involving Indians, the analog to the forum state is
Indian country. Today, the majority invents a new analog to the
state for purposes of personal jurisdiction in Alaska -- the tribal
village:
A requirement that a tribal court possess
personal jurisdiction over litigants appearing
before it ensures that the tribal court will
not be called upon to adjudicate the disputes
of parents and children who live far from
their tribal villages and have little or no
contact with those villages.100
These assurances that "tribal courts will not be called
upon to adjudicate the disputes" of those who live far from tribal
villages are illusory, for if a party files a custody suit against
another party, Native or non-Native, that defendant must respond no
matter where he or she lives, or risk a default judgment in tribal
court. The defendant might be able to raise the defense that the
tribal court lacked personal jurisdiction but the uncertainty of
the meaning of personal jurisdiction in the context of village
tribal courts makes that a strategy whose risks may be unacceptably
high for many litigants.101
It is anyone's guess how the untested concept of personal
jurisdiction premised on tribal villages will play out in our state
courts. But it does reveal the foundation upon which the
majority's decision rests. Rejecting the need for Indian country
as the territorial basis for tribal jurisdiction, the majority in
the end substitutes another territorial concept through the
doctrine of personal jurisdiction. This is a new path, one not
taken by federal Indian law.
VI. Indian Country Is a Prerequisite for the Exercise of Tribal
Court Adjudicatory Authority tc \l1 "VI. Indian Country Is
a Prerequisite for the Exercise of Tribal Court Adjudicatory
Authority
A. The Supreme Court Has Never Held that a Tribe's Inherent
Powers Can Be the Basis for Exercising Tribal
Adjudicatory Authority Outside of Indian Country tc \l2
"A. The Supreme Court Has Never Held that a Tribe's
Inherent Powers Can Be the Basis for Exercising Tribal
Adjudicatory Authority Outside of Indian Country
The United States Supreme Court has never held, as the
majority does today, that a tribe's inherent sovereignty, in and of
itself, independent of Indian country, can be the basis for tribal
adjudicatory authority.102 The majority acknowledges the absence
of case law supporting what it does today, but claims that this
dearth of legal precedent results from the fact that "courts have
not had occasion to tease apart the ideas of land-based sovereignty
and membership sovereignty."103
This is an erroneous reading of Supreme Court Indian law
jurisprudence, for "teasing apart" these concepts is exactly what
the Court has done when it has held that state rather than tribal
law governs tribal members outside of Indian country. The cases
cited in the following subsections illustrate this. They also
illustrate a fundamental principle of Indian law, as articulated by
the Conference of Western Attorneys General: "[A] tribe's inherent
sovereign powers extend only to tribal territory, [therefore]
tribal claims of civil and criminal jurisdiction over member
actions on fee lands will be dependent upon the status of those
lands."104 This principle is central to the resolution of the
present case, but is ignored by the majority.
B. At Least Two of the Inherent Powers Recognized in United
States v. Wheeler Do Not Extend Beyond Indian Country tc
\l2 "B. At Least Two of the Inherent Powers Recognized
in United States v. Wheeler Do Not Extend Beyond Indian
Country
United States v. Wheeler105 held that an Indian tribe's
"right of internal self-government includes the right to prescribe
laws applicable to tribe members and to enforce those laws by
criminal sanctions."106 This "power to punish tribal offenders is
part of [a tribe's] own retained sovereignty."107 Other retained
sovereign powers of Indian tribes include the power "to regulate
domestic relations among tribe members."108
The majority relies heavily on Wheeler in holding that
the Northway tribal court has jurisdiction in the present case.109
However, Wheeler, itself, does not answer the question posed by
the present case because the events giving rise to the crime in
Wheeler took place solely within the confines of Indian country.110
Despite its extensive reliance on Wheeler, the majority never
acknowledges this important difference between Wheeler and the
present case. Thus, Wheeler's teachings about inherent tribal
powers provide limited guidance in the present case. Wheeler
describes how and from where such inherent powers are derived. But
it does not indicate whether such powers extend outside of Indian
country -- the central issue here.
1. A Tribe's Inherent Power to Criminally Sanction Its
Members Does Not Extend Outside of Indian Country
tc \l3 "1. A Tribe's Inherent Power to Criminally Sanction Its
Members Does Not Extend Outside of Indian Country
In order for the majority's reasoning and result to be
correct, there should be authority indicating that the inherent
tribal powers described in Wheeler extend outside of Indian
country. But there is no such authority. To the contrary, there
is definitive authority for the opposite conclusion: that a tribe's
inherent power to punish tribal members does not extend beyond the
confines of Indian country. For example, in Organized Village of
Kake,111 the Supreme Court observed: "State authority over Indians
is yet more extensive over activities . . . not on any reservation.
It has never been doubted that States may punish crimes committed
by Indians, even reservation Indians, outside of Indian country."112
This conclusion is not surprising. Even the majority most likely
would not endorse the notion of granting Alaska tribes the
authority to criminally punish tribal members; yet, that is the
logical extension of today's decision.
In Solem v. Bartlett,113 the Supreme Court made clear that
the state's jurisdiction over Indians acting outside of Indian
country was exclusive. Solem involved a habeas corpus petition of
an enrolled member of the Cheyenne River Sioux Tribe.114 The
question was whether the state had jurisdiction over a tribal
member who had committed a crime.115 The Supreme Court, as it has
in numerous other cases,116 resolved this issue by examining whether
the actions giving rise to the dispute occurred in Indian country.
The Court did so because it regarded actions outside of Indian
country by tribal members to be under the exclusive jurisdiction of
the state. The Court explained this concept broadly:
As a doctrinal matter, the States have
jurisdiction over unallotted opened lands if
the applicable surplus land Act freed that
land of its reservation status and thereby
diminished the reservation boundaries. On the
other hand, federal, state, and tribal
authorities share jurisdiction over these
lands if the relevant surplus land Act did not
diminish the existing Indian reservation
because the entire opened area is Indian
country . . . .[117]
Solem is an important case because it shows that several
of the premises upon which the majority's decision is based are
wrong. First, it demonstrates that inherent tribal powers like
those recognized in Wheeler do not extend beyond Indian country.
Second, it shows that state jurisdiction over tribal members
outside of Indian country is exclusive, not, as the majority
concludes, concurrent with tribal authority.118 This is clear
because the Court held that "the States have jurisdiction" over
Indians committing crimes on land that is freed "of its reservation
status", but, "[o]n the other hand, federal, state, and tribal
authorities share jurisdiction" if the land is Indian country.119
Third, it disposes of the majority's unsupported assertion that
jurisdiction over "land" has nothing to do with a tribe's
jurisdictional authority over members.120 The entire discussion in
Solem is expressed in terms of jurisdiction over "lands" in order
to determine jurisdiction over tribal members.121 And fourth, Solem
does away with the majority's claim that federal courts have not
had the occasion to consider or "answer the question of what
happens when a law like ANCSA separates [tribal] membership and
land."122 The Supreme Court did just that in Solem when it analyzed
the surplus land Acts, which like ANCSA, "uncouple[d] reservation
status [of the land] from Indian ownership."123
2. A Tribe's Inherent Power to Regulate Domestic
Relations Among Members Does Not Extend to Cases
Arising Outside of Indian Country tc \l3 "2. A
Tribe's Inherent Power to Regulate Domestic
Relations Among Members Does Not Extend to Cases
Arising Outside of Indian Country
The majority is correct in noting that tribes have the
inherent power to regulate domestic relations among tribal
members.124 Both United States v. Wheeler125 and Montana v. United
States126 recognized this power.127 However, as the discussion above
shows, the specific inherent power which was Wheeler's focus -- the
ability of tribes to criminally punish their members -- does not
extend beyond Indian country. Therefore, it is logical to conclude
that neither do the other inherent powers recognized by Wheeler.
Supreme Court case law bears this out, at least in terms of the
power to decide child custody cases.
Supreme Court precedent holds that the inherent power
over child custody cases does not extend to cases not arising in
Indian country. One case so holding is DeCoteau v. District County
Court.128 The other is Fisher v. District Court.129
C. DeCoteau tc \l2 "C. DeCoteau
The issue in one of the two consolidated cases in
DeCoteau was whether the tribal or state court had jurisdiction
over custody proceedings involving Indian children.130 The Supreme
Court framed the issue as follows:
In each of the two cases, the South Dakota
courts asserted jurisdiction over members of
the Sisseton-Wahpeton Tribe for acts done on
lands which, though within the 1867
reservation borders, have been owned and
settled by non-Indians since the 1891 Act.
The parties agree that the state courts did
not have jurisdiction if these lands are
"Indian country," as defined in 18 U.S.C.
1151 . . . .[131]
The Court followed this statement with Footnote 2:
If the lands in question are within a
continuing "reservation," jurisdiction is in
the tribe and the Federal Government . . . .
On the other hand, if the lands are not
within a continuing reservation, jurisdiction
is in the State, except for those land parcels
which are "Indian allotments, the Indian
titles to which have not been extinguished
. . . . While 1151 is concerned, on its
face, only with criminal jurisdiction, the
Court has recognized that it generally applies
as well to questions of civil
jurisdiction."[132]
The language of Footnote 2 delineates a straightforward
jurisdictional scheme whereby tribal courts have jurisdiction over
their members only if the actions of such members that gave rise to
the dispute took place in Indian country. The majority disagrees,
claiming that "the Court [in DeCoteau] did not consider the
implications of the reservation's existence because it accepted a
stipulation by the parties that the state had jurisdiction if the
reservation had been terminated by Congress."133
The majority misreads DeCoteau. It confuses the
stipulation and related assumption in Footnote 3 with the
statements of law contained in Footnote 2, and the result is a
dramatic mischaracterization of the import of the case. It is not
true, as the majority claims, that "[a]fter describing the legal
agreement between the parties, which the Court assumed without
deciding was an accurate one,[134] the Court noted in [F]ootnote 2
that the parties relied on 11 U.S.C. 1151(a) and (c) in
formulating their stipulation."135 Footnote 2, which precedes rather
than follows Footnote 3, describes an entirely different legal
concept -- one that was not contested by the parties, but was not
part of the stipulation described in Footnote 3.
The language of Footnote 2 does not describe the content
of any kind of stipulation by the parties. Rather, Footnote 2
contains the Court's explanation as to why the parties to the case
did not contest the settled issue that "state courts [do] not have
jurisdiction if [the] lands are 'Indian country'."136
The fallacy of the majority's reading of DeCoteau can be
illustrated in two ways. First, a close examination of Footnote 2
reveals that each assertion is supported by a citation to legal
authority. It would be illogical to presume that the first two
sentences of the footnote (containing the allocative principle) are
a description of a stipulation by the parties, but the third
sentence is an unannounced segue into the Court's legal analysis.
The second way to disprove the majority's reasoning is to
compare the Court's treatment of the issue in Footnote 2 with that
of the issue in Footnote 3. Footnote 3, in contrast to 2, does
concern an agreement between the parties not to litigate an
unsettled question of law. The parties stipulated that fifty
percent of the mother's acts occurred on non-Indian, patented land.
The Court noted:
The parties here have assumed that the State
had jurisdiction . . . if the non-Indian,
patented lands were not "Indian country" under
18 U.S.C. 1151(a). We have made the same
assumption. We note, however, that 1151(c)
contemplates that isolated tracts of "Indian
country" may be scattered checkerboard fashion
over a territory otherwise under state
jurisdiction. In such a situation, there will
obviously arise many practical and legal
conflicts between state and federal
jurisdiction with regard to conduct and
parties having mobility over the checkerboard
territory. How these conflicts should be
resolved is not before us.[137]
The Court is explicit about the content of the assumption made by
the parties -- specifically, that the fifty percent figure would be
sufficient to give the state court jurisdiction if the patented
land was found not to be Indian country. The Court then raises the
counter-argument to this position before openly declaring that the
issue was not before the Court and would therefore not be decided.
None of this careful disclaimer exists in Footnote 2, because
Footnote 2 is a statement of law rather than a description of a
stipulation.
The legal principle in Footnote 2 does not indicate where
jurisdiction would lie if the activities giving rise to the dispute
occurred partly in Indian country and partly outside Indian
country. Footnote 3 raises that complex question, but indicates
that the parties avoided the issue by stipulating that fifty
percent non-Indian country activity would be enough to confer state
jurisdiction.138
The facts of the present case fall squarely within the
legal principle announced in Footnote 2 of DeCoteau -- if the lands
are not within Indian country "jurisdiction is in the State."139
This is why I believe DeCoteau should control the resolution of
today's case. The tribe in DeCoteau, like tribes, post-ANCSA, in
Alaska which previously occupied reserves, had lost its Indian
country. Both DeCoteau and today's case involve the same main
issue -- whether a tribal or state court has jurisdiction in an
Indian child custody dispute. Thus, the result in our case should
be the same as in DeCoteau -- jurisdiction lies with the state, not
tribal, court.
D. Fisher tc \l2 "D. Fisher
In Fisher, the Tribal Court of the Northern Cheyenne
awarded temporary custody of tribal member Ivan to Josephine
Runsabove, also a tribal member, because the court had found that
Ivan's mother had neglected him.140 The tribal court later granted
Ivan's mother's request for temporary custody.141 Four days before
the entry of that order, Runsabove and her husband initiated an
adoption proceeding for Ivan in Montana state court.142 Ivan's
mother, who was also a tribal member, moved to dismiss this state
court case for lack of subject matter jurisdiction, arguing that
the tribal court possessed exclusive jurisdiction.143 Upon
receiving a certified question from the state court on the issue of
which court had jurisdiction, a tribal appellate court held that
the state court was without jurisdiction.144 The Montana Supreme
Court disagreed, holding that the state court had jurisdiction.145
The United States Supreme Court reversed the Montana Supreme
Court, noting that this was a case between Indians "arising out of
conduct on an Indian reservation," and "[n]o federal statute
sanctions this interference with tribal self-government" because,
among other reasons, "Montana has not been granted . . . civil
jurisdiction" over the reservation under P.L. 280.146 The Court
made it clear that the result would have been different if the
litigants had not resided in Indian country:
Since the adoption proceeding is
appropriately characterized as litigation
arising on the Indian reservation, the
jurisdiction of the Tribal Court is exclusive.
The Runsaboves have not sought to defend the
state court's jurisdiction by arguing that any
substantial part of the conduct supporting the
adoption petition took place off the
reservation. . . . Since all parties resided
on the reservation at all relevant times, and
since the reservation has not been partially
terminated, cf. DeCoteau v. District County
Court, 420 U.S. [425,] 429 n.3 [(1975)], it
appears that none of the acts giving rise to
the adoption proceedings occurred off the
reservation. The Runsaboves do not contend
otherwise. . . . In a proceeding such as an
adoption, which determines the permanent
status of litigants, it is appropriate to
predicate jurisdiction on the residence of the
litigants . . . .[147]
The Court's teaching is clear: since jurisdiction is to
be predicated on the place of residence of the litigants, if the
parties to the dispute had resided outside of Indian country the
state court would have had jurisdiction. That is the situation in
the present case, because the litigants here do not reside in
Indian country.
Thus, I believe that Fisher squarely answers the issue
presented by the present case. But the majority argues that Fisher
supports its holding that the Northway tribal court has
jurisdiction in this case. The majority does this in two ways: (1)
by misreading Fisher; and (2) by citing a subsequent Supreme Court
case in an attempt to reinterpret Fisher's analysis and holding.
I address each of these efforts in turn.
1. Fisher's Language Does Not Support Jurisdiction
Outside Indian Country tc \l3 "1. Fisher's
Language Does Not Support Jurisdiction Outside
Indian Country
The majority argues that Fisher "provides an example of
the Supreme Court's recognition of the dual nature of
sovereignty[.]"148 The majority acknowledges that the language in
Fisher, cited above, makes it clear that the Supreme Court was
holding that jurisdiction was in the tribal court because the child
custody dispute arose in Indian country. But, the majority then
quotes Fisher in the following manner: "[t]he exclusive
jurisdiction of the Tribal Court . . . [derives] from the quasi-
sovereign status of the Northern Cheyenne Tribe under federal
law."149 From this quote, the majority finds evidence for its "dual
nature of sovereignty" theory by stating "Fisher therefore reflects
both a recognition of territorial bases of sovereignty and an
understanding that tribal status itself includes the power to
adjudicate internal child custody disputes."150 The use of the word
"itself" means that the majority believes that tribal court
jurisdiction can be based on territorial sovereignty, or, as to
cases not arising in Indian country, a tribe's inherent
sovereignty. Such a reading is not reasonable.
The Northern Cheyenne Tribe has quasi-sovereign status.
The power derived from this status is what enabled the tribe to
adjudicate the child custody case in Fisher. But the Court made
clear that this power does not follow tribal members wherever they
reside. Instead, it is confined to cases arising in Indian
country.
The majority's "dual nature of sovereignty" reading of
Fisher presumes that the
Supreme Court's analysis in
Fisher is internally
inconsistent. The Supreme
Court could not assert both
that if the case arose outside
Indian country, the state court
would have jurisdiction,151 and
also that "tribal status itself
includes the power to
adjudicate internal child
custody disputes,"152 arising
outside Indian country. Fisher
is not saying that tribal
authority to adjudicate child
custody cases is limited to
cases arising in Indian country
and that such authority is not
limited to cases arising in
Indian country. Yet that is
what the majority's reading
comes down to. Rather, Fisher
can only be read as holding
that the tribe has jurisdiction
to adjudicate a child custody
case involving tribal members
because of its quasi- sovereign
status, and that this
jurisdiction is limited to
cases arising in Indian
country.153
Indeed, consistent with many other Supreme Court cases,154
Fisher treats the question of whether or not the dispute arose in
Indian country as a threshold issue, upon which the outcome of the
case rests. Finding that the case arose in Indian country, the
Court applied the general rule favoring tribal authority in the
absence of contrary congressional intent.155 That Fisher treated
the existence of Indian country as a threshold issue becomes even
more clear in light of Fisher's citation to and reliance on
DeCoteau.
As previously noted, in DeCoteau the Supreme Court found
that the events giving rise to the Indian child custody dispute in
question did not take place in Indian country. On that basis, the
Court found that the state court had exclusive jurisdiction.156
DeCoteau was twice cited by Fisher.157 Fisher, which "predicate[s]
jurisdiction on . . . residence" must, like DeCoteau, be read as
standing for the proposition that Indian country is a requirement
for tribal court jurisdiction in child custody cases where a tribe
exercises its inherent sovereign authority over its members. To
read Indian country as somehow merely optional or as just an
alternative path to jurisdiction, as the majority does, is plainly
inconsistent both with Fisher and DeCoteau.158
2. Iowa Mutual's Citation to Fisher Does Not
Persuasively Reinterpret Fisher's Meaning tc \l3
"2. Iowa Mutual's Citation to Fisher Does Not
Persuasively Reinterpret Fisher's Meaning
The majority attempts to reinterpret Fisher's teachings
by relying on the following statement from Iowa Mutual Insurance
Co. v. LaPlante:159 "If state-court jurisdiction over Indians or
activities on Indian lands would interfere with tribal sovereignty
and self-government, the state courts are generally divested of
jurisdiction as a matter of federal law. See Fisher v. District
Court, 424 U.S. 382 (1976)."160 The majority maintains that Iowa
Mutual shows that Fisher's holding stemmed from the tribe's
sovereign powers and not its connection to Indian country.161
The majority's interpretation of Iowa Mutual's citation
to Fisher is directly at odds with Strate v. A-1 Contractors.162
Strate is a much more recent Supreme Court pronouncement on tribal
court adjudicatory authority. It does not simply cite Fisher, as
Iowa Mutual does, but directly explains the holding in Fisher,
something that Iowa Mutual does not do. Strate states:
The Court held in Fisher that a tribal court
had exclusive jurisdiction over an adoption
proceeding when all parties were members of
the tribe and resided on its
reservation. . . . The Court observed in
Fisher that state courts may not exercise
jurisdiction over disputes arising out of on-
reservation conduct -- even over matters
involving non-Indians -- if doing so would
"infring[e] on the right of reservation
Indians to make their own laws and be ruled by
them."[163]
Later in the opinion, the Court in Strate interprets a citation
that Montana v. United States made to Fisher.164 The Court in
Strate described Montana's analysis in the following way: "The
[Montana] Court referred first to the decision [in Fisher]
recognizing the exclusive competence of a tribal court over an
adoption proceeding when all the parties belonged to the Tribe and
resided on its reservation. See Fisher, 424 U.S. at 386."165
Strate's explanation of Fisher leaves no doubt that the
Supreme Court views the existence of Indian country as a critical
factor in Fisher's analysis. Its use of the word "and," not "or,"
each time it analyzed Fisher shows that the Court viewed the
tribe's connection to Indian country as a determining factor in its
holding that the tribal court in Fisher had jurisdiction over the
child custody dispute. Strate, therefore, closes the door on the
majority's interpretation of Fisher that would have Fisher stand
for the proposition that tribal courts can adjudicate child custody
cases not arising in Indian country.
Also, Strate makes it clear that to the extent that Iowa
Mutual is cited for authoritative statements on the scope of tribal
jurisdictional powers (as the majority does)166 it is no longer
persuasive law. The Supreme Court in Strate emphasizes this point
throughout its opinion.
Both [Iowa Mutual and National Farmers Union
Insurance Cos. v. Crow Tribe, 471 U.S. 845
(1985)] describe an exhaustion rule allowing
tribal courts initially to respond to an
invocation of their jurisdiction; neither
establishes tribal-court adjudicatory
authority, even over the lawsuits involved in
those cases. . . . Recognizing that our
precedent has been variously interpreted, we
reiterate that National Farmers and Iowa
Mutual enunciate only an exhaustion
requirement . . . . These decisions do not
expand or stand apart from Montana's
instruction on "the inherent sovereign powers
of an Indian tribe."[167]
3. Fisher Does Not Concern Concurrent State
Jurisdiction tc \l3 "3. Fisher Does Not Concern
Concurrent State Jurisdiction
The majority states that the main issue in Fisher was
"whether Montana had any basis to assert concurrent
jurisdiction."168 But the word "concurrent" does not appear
anywhere in the Fisher opinion.
Instead of indicating that it was envisioning a
concurrent jurisdictional scheme, the Court stated that it was
"appropriate to predicate jurisdiction on the residence of the
litigants." Because "all parties resided on the reservation at all
relevant times" the state court was without jurisdiction.169 This
language contains no hint that the Supreme Court was contemplating
a system of shared jurisdiction. To the contrary, the phrase
"predicate jurisdiction on the residence of the litigants" fits
squarely within the theoretical framework of the allocative
principle -- tribal jurisdiction if within Indian country and state
jurisdiction if outside of Indian country.
Fisher's reliance on and citations to DeCoteau also
indicate that Fisher's focus was determining whether the state or
tribe had exclusive jurisdiction. Both cases centered on the same
issue -- whether the state or tribal court had jurisdiction over an
Indian child custody dispute. Footnote 2 of DeCoteau is an
explicit statement that the Court viewed the jurisdiction in that
case to be exclusive.170 Nothing in Fisher, which was decided only
one year after DeCoteau, signals a change to a system of concurrent
jurisdiction.
E. Other Case Law tc \l2 "E. Other Case Law
In an attempt to illustrate the principle that tribal
courts, outside of Indian country, can predicate jurisdictional
authority over members and nonmembers on nothing more than the
tribe's inherent sovereignty powers, the majority cites two Supreme
Court tax cases,171 Oklahoma Tax Commission v. Sac and Fox Nation,172
and Oklahoma Tax Commission v. Chickasaw Nation.173 But the
majority does not rely on what the Supreme Court actually held in
these cases. Sac and Fox Nation held that Oklahoma's income tax
did not apply to tribal members earning income from tribal
employment within Indian country who also resided within Indian
country.174 The Court also held that Oklahoma's vehicle and excise
tax and registration fees did not apply to tribal members living in
Indian country.175 Chickasaw Nation held that the State of Oklahoma
may tax the income of Indian tribal members who work for the tribe
in Indian country, but reside outside of Indian country.176 The
Court also held that Oklahoma could not tax motor fuel sold by the
tribe within Indian country.177 Thus, these cases illustrate the
continued importance of whether a case arises in Indian country in
delineating the proper allocation of tribal and state power.
Despite the holdings in Sac and Fox Nation and Chickasaw
Nation, which do not support today's decision, the majority,
through the use of pliable phrases like "the Court implied"178 or
the cases "suggest,"179 argues that these cases support its
decision.180 The majority goes so far as to argue that "[b]y
deliberately leaving the door open for tribal governments to
conduct internal self-governance functions in the absence of Indian
country, Chickasaw Nation and Sac and Fox Nation suggest that
Northway Village has jurisdiction to hear this [child custody]
dispute[.]"181
The dicta in these cases182 do suggest that it is an open
question whether a tribe in the exercise of inherent sovereignty
may tax income earned from tribal employment in Indian country by
members who do not reside in Indian country. Perhaps this also
suggests the possibility that there are other powers derived from
inherent sovereignty which extend beyond the boundaries of Indian
country.183 But we know because of Fisher and DeCoteau that the
power to decide child custody cases is not among such powers.
Thus, with regard to jurisdiction to hear child custody cases
arising outside of Indian country, Fisher and DeCoteau have already
shut the door the majority maintains is still "open."
VII. Executive and Statutory Authority Relied on by the Majority tc
\l1 "VII. Executive and Statutory Authority Relied on by the
Majority
As the discussion above demonstrates, substantial case
law from the United States Supreme Court establishes the allocative
principle. Outside of Indian country, this principle provides that
absent "express federal law to the contrary," "beyond reservation
boundaries" Indians "have generally been held subject to
nondiscriminatory state law otherwise applicable to all citizens of
the state."184 Since there is no express federal law that grants
the Northway tribal court jurisdictional authority over the custody
dispute in this case, it should follow, because the dispute arose
outside of Indian country, that Northway is without jurisdiction.
But the majority finds that "the intent of the Executive Branch"
and "federal statutes" is to grant the Northway tribal court
jurisdictional authority in the present case, despite the absence
of Indian country.185 As shown below, neither the intent of the
executive branch nor any federal statute legitimizes or supports
the majority's decision.
A. Executive Advocacy as to the Extent of Tribal Court
Jurisdiction Is Not Entitled to Special Deference tc \l2
"A. Executive Advocacy as to the Extent of Tribal Court
Jurisdiction Is Not Entitled to Special Deference
The majority states that "since this court defers to
determinations of tribal status by the Executive Branch or by
Congress, we similarly accept their conclusion that, even after
ANCSA, federally recognized Alaska Native tribes like Northway
Village retain sovereignty to adjudicate domestic disputes between
members."186 While it is true that we give conclusive deference to
the determinations of Congress on all matters of federal law,
Congress has not concluded that Alaska tribes have authority to
adjudicate child custody cases arising outside of Indian country.
It is also true that tribal recognition by the Department
of the Interior is given conclusive deference as a non-justiciable
political question,187 presumably because the Department has been
delegated authority by Congress to make such a determination. But
it does not follow that we give similar deference to the executive
branch on questions concerning the extent of tribal authority. In
fact, we do not.
Only Congress can prescribe the allocation of authority
between tribes and states.188 Once tribal status has been granted,
the executive's role in disputes concerning tribal and state power
is usually that of an advocate. While executive recognition of
tribal status is non-justiciable, executive advocacy concerning
tribal power is not similarly conclusive. To the contrary, in
numerous disputes involving the extent of tribal court
jurisdiction, the Supreme Court has rejected arguments by the
executive branch that urged an expansion of tribal authority.189
Thus, the majority opinion is wrong in stating that we must accept
the Department of Justice's arguments on tribal court jurisdiction
in this case in the same way that we are bound to accept the
Interior Department's determination of tribal status.
B. Statutory Analysis tc \l2 "B. Statutory Analysis
The majority does not acknowledge or apply the "general
rule" that, absent "express federal law to the contrary," tribal
authority does not extend beyond Indian country.190 However, the
majority does hold that "the intent of Congress, as revealed by the
Tribe List Act, ICWA, and the Tribal Justice Act," bestows upon
Alaska Native tribal courts the jurisdictional authority to hear
child custody disputes arising outside of Indian country.191 None
of the statutes relied upon by the majority grants to tribal courts
jurisdiction over child custody cases between parents not arising
in Indian country. None is therefore the "express federal law"
needed to overcome the presumption against tribal adjudicatory
authority outside of Indian country which should control this
case.192
1. The Canon of Construction Favoring Native Americans
Is Inapplicable to This Case tc \l3 "1. The Canon
of Construction Favoring Native Americans Is
Inapplicable to This Case
In analyzing the statutes upon which it relies, the
majority uses the canon of construction that requires courts to
"resolve ambiguities in statutes affecting the rights of Native
Americans in favor of Native Americans."193 However, it is not at
all clear to which statute the majority is applying the canon.
There is no statute that the majority cites that can be said, even
ambiguously, to bestow concurrent jurisdiction on tribal courts in
Alaska.
Further, the canon does not apply for another reason.
The parties to this dispute are Anita John and John Baker, both of
whom are Native Alaskans. The Native Village of Northway is an
amicus curiae. Baker does not want the Northway tribal court to
have jurisdiction in this case, in part because he believes that
his rights and the rights of his children will be adversely
affected by the assumption of jurisdiction by the tribal court.
Yet, the majority applies its assumption "in favor of Native
Americans" for John and the Northway tribe at the expense of Baker.
Since Native Alaskans are on both sides of the case, the canon
should apply to both, or neither. Either way, it is a non-factor.
The Supreme Court in Northern Cheyenne Tribe v.
Hollowbreast194 has recognized this. The Court stated that when a
suit involves the competing interests of tribes and tribal members
the canon of construction favoring Indians "has no application."195
2. ANCSA tc \l3 "2. ANCSA 196
The majority states that "ANCSA itself . . . support[s]
Northway's jurisdiction over child custody matters."197 In fact,
ANCSA makes clear that of all the things it was intended to do,
expanding tribal court jurisdiction in Alaska was not one of
them.198 As demonstrated in Section II of this dissent, Alaska
Natives have always been subject to the same laws as non-Natives,
administered only by territorial and state courts open to both
Natives and non-Natives. ANCSA rejected any notion that it should
be interpreted as expanding tribal court jurisdiction or Native
sovereignty in any way: "Congress finds and declares that -- the
settlement [of Native Alaskan land claims] should be accomplished
rapidly . . . without establishing any permanent racially defined
institutions, rights, privileges, or obligations . . . ."199
Still, the majority proceeds from the premise that
"Congress did not intend for ANCSA to divest tribes of their powers
to adjudicate domestic disputes between members."200 Thus, the
majority's approach is to look at Congress's intent in ANCSA and
ask whether Congress in abolishing reservations and reserves
intended to take away important aspects of tribal sovereignty. My
view is different. The consequences that flow from the revocation
of reserves and reservations by ANCSA are the same as the
consequences which would result from the revocation of Indian
country with respect to any tribe in the United States. That is
why Fisher and DeCoteau are so persuasive with regard to this case.
The Supreme Court's decision in Venetie II201 vindicates
my approach. That decision shows that the revocation of
reservations and reserves by ANCSA had the same meaning as the
revocation of Indian country elsewhere. For example, the power to
tax is an inherent tribal power.202 But the ruling in Venetie II
was that because ANCSA revoked the Venetie reserve and did not
create new types of Indian country, the village of Venetie could
not exercise that power.203 The Court said that Indian country as
defined in 18 U.S.C. 1151 "generally applies to questions of
civil jurisdiction such as the ones at issue here. See DeCoteau v.
District County Court for the Tenth Judicial Dist., 420 U.S. 425,
427 n.2 (1975)."204 This is important for two reasons. First, it
is a statement that the existence or nonexistence of Indian country
is determinative of "questions of civil jurisdiction" in Alaska and
elsewhere. Second, because the language "such as the ones at issue
here" is followed immediately by the citation to DeCoteau Footnote
2, it analogizes the issue in Venetie II -- the inherent power and
jurisdiction to tax -- with the issue in DeCoteau Footnote 2 -- the
inherent power and jurisdiction over child custody disputes. The
consequence of the tribe's loss of Indian country in DeCoteau was
that the tribe lost the power to adjudicate tribal child custody
disputes arising in what was no longer Indian country. Venetie
II's citation to Footnote 2 of DeCoteau makes clear that the
Supreme Court had the analytical framework of DeCoteau in mind when
the Court examined tribal power, post-ANCSA, in Alaska.
3. The Tribe List Act tc \l3 "3. The Tribe List Act 205
Although the Tribe List Act formally recognizes Alaska
Native villages as tribes, it does not in any way expand tribal
powers. Rather, as the Department of the Interior explained,
Native villages in Alaska "have the right, subject to general
principles of Federal Indian law, to exercise the same inherent and
delegated authorities available to other tribes . . . ."206 General
principles of federal Indian law would have prevented the Northern
Cheyenne tribal court in Fisher from assuming jurisdiction over a
child custody dispute between tribal members had that dispute
arisen outside of Indian country.207 Similarly in DeCoteau, general
principles of federal Indian law dictated that a South Dakota court
rather than the Sisseton-Wahpeton tribal authorities had
jurisdiction over the children there involved because the tribe's
reservation had been terminated. Because the same general
principles apply to the present case, the result here should be
that the Northway tribal court lacks jurisdiction. The addition of
Alaska Native villages to the Tribe List Act does nothing more than
confirm the correctness of this result.
That special privileges were not intended to be granted
Alaska Native tribes is also made clear by the House Report
accompanying the Tribe List Act which states that the Act neither
confers nor denies sovereignty. This report stated:
The Committee notes . . . that there is
extensive litigation on the subject of the
precise sovereign powers of Alaska Native
Tribes. While these issues deserve further
review by Congress, nothing in this Act should
be construed as enhancing, diminishing, or
changing in any way the status of Alaska
Native Tribes. It is the intent of the
Committee that its previous position taken in
the 1987 amendments to the Alaska Native Land
Claims Settlement Act be maintained and that
nothing in this Act shall "confer on, or deny
to, any Native organization any degree of
sovereign governmental authority over lands
. . . or persons in Alaska." P.L. 100-241,
Section 2(8)(B). [This] Act merely requires
that the Secretary continue the current policy
of including Alaska Native entities on the
list of Federally recognized Indian tribes
which are eligible to receive services.[208]
This language is plain: Congress did not intend the
Tribe List Act to be a vehicle for expanding or diminishing tribal
power. But the majority explicitly relies on the Tribe List Act as
authority to change the allocation of jurisdictional authority over
tribal children between tribal and state courts as laid out in
decisions of the United States Supreme Court. Thus, the majority
"construes" the Act in a way that Congress forbade -- it uses the
Act as a means to expand tribal jurisdictional authority.
4. The Tribal Justice Act tc \l3 "4. The Tribal
Justice Act 209
The majority's reliance on the Tribal Justice Act is
equally unpersuasive. The Tribal Justice Act focuses primarily on
establishing, organizing, and funding, within the Department of the
Interior, the Office of Tribal Justice Support.210 The Act also
establishes responsibilities, goals, and funding for the Secretary
of the Interior in working toward the development and betterment of
tribal justice systems.211 In its "Findings" the Act is protective
of tribal rights that have already been established by Congress or
the courts.212 But nothing in the Act extends or bestows any
additional jurisdiction to tribal courts. And because neither
Congress nor the Supreme Court has bestowed upon tribal courts the
jurisdiction to hear child custody disputes not arising in Indian
country between parents, neither does the Tribal Justice Act.213
5. The Indian Child Welfare Act (ICWA) tc \l3 "5.
The Indian Child Welfare Act (ICWA)
a. ICWA Should Not Be Extrapolated tc \l4 "a.
ICWA Should Not Be Extrapolated
ICWA does not apply to this case. The majority
acknowledges this.214 Nevertheless, the majority relies on "the
intent of Congress, as revealed by . . . ICWA" for its holding that
the Northway tribal court has jurisdiction over the child custody
dispute in this case.215 We have observed that "a statute may form
the basis for a common law rule which applies beyond the prescribed
scope of the statute."216 That observation was accompanied by a
quotation from Moragne v. States Marine Lines, Inc.,217 which
indicates when a principle may be extrapolated from legislation and
made a part of general decisional law and when extrapolation should
not take place. The Supreme Court in Moragne stated:
The legislature does not, of course,
merely enact general policies. By the terms
of a statute, it also indicates its conception
of the sphere within which the policy is to
have effect. In many cases the scope of a
statute may reflect nothing more than the
dimensions of the particular problem that came
to the attention of the legislature, inviting
the conclusion that the legislative policy is
equally applicable to other situations in
which the mischief is identical. This
conclusion is reinforced where there exists
not one enactment but a course of legislation
dealing with a series of situations, and where
the generality of the underlying principle is
attested by the legislation of other
jurisdictions. On the other hand, the
legislature may, in order to promote other,
conflicting interests, prescribe with
particularity the compass of the legislative
aim, erecting a strong inference that
territories beyond the boundaries so drawn are
not to feel the impact of the new legislative
dispensation.[218]
Because Congress explicitly excluded from ICWA's coverage divorce
proceedings219 and, as the majority points out, this exclusion was
intended to encompass child custody proceedings between unmarried
as well as married parents,220 ICWA presents a case in which
Congress in recognition of conflicting interests has, to use the
language of Moragne, "prescribe[d] with particularity the compass
of the legislative aim, erecting a strong inference that
territories beyond the boundaries so drawn are not to feel the
impact of the new legislative dispensation."
Further, we have already held that the extrapolation
method that the majority engages in today is inappropriate with
regard to ICWA. In Catholic Social Services, Inc. v. C.A.A.,221 we
cautioned against interpreting ICWA in ways that extend it beyond
its intended scope. In that case the superior court found that
under ICWA an Indian child's tribe is entitled to notice of a
proceeding for voluntary termination of parental rights, even
though the statute itself contained no notice requirement.222 We
reversed, holding that "[i]n enacting [ICWA], Congress has both
created and defined tribal rights in adoption and termination
proceedings. The provisions of the Act . . . define the scope of
tribal rights. The Act strikes a balance between the sometimes
conflicting interests of Indian parents, Indian children, and their
tribes."223 Today the majority ignores Catholic Social Services'
admonition that it is the business of Congress, not the courts, to
create, define, and also limit the scope of tribal rights with
regard to ICWA.224
b. The Majority Decision Ignores Essential
Protections Which Congress Built into ICWA tc
\l4 "b. The Majority Decision Ignores
Essential Protections Which Congress Built
into ICWA
Moreover, even assuming that the majority is correct in
its assumption that "the intent of Congress, as revealed by . . .
ICWA,"225 could apply to this case, the majority's decision would
still be flawed. In enacting ICWA, Congress crafted two important
protections relevant to this case which the majority's improvised
extension of jurisdiction ignores.
First, ICWA provides that before tribes which became
subject to state jurisdiction in P.L. 280 states can reassume
jurisdiction they must obtain the approval of the Secretary of the
Interior to a plan for the reassumption of jurisdiction.226 The
regulations for reassumption of jurisdiction contain detailed
provisions designed to insure that any tribe reassuming
jurisdiction has an appropriately organized tribal court, and that
there are clear procedures for identifying persons who will be
subject to its jurisdiction.227 Further, notice of approval of a
reassumption plan must include a clear description of the territory
in which jurisdiction will be exercised.228
Second, in ICWA cases which arise outside of Indian
country tribal courts only have what is called "transfer
jurisdiction."229 This jurisdiction can only be exercised with the
consent of both parents.230 Thus it was the judgment and intent of
Congress that tribal court jurisdiction should not reach beyond the
boundaries of Indian country in ICWA cases unless both parents
agree to the use of the tribal forum. The Department of the
Interior guidelines for interpreting ICWA specifically refer to
this provision as "an absolute veto power over transfers" to tribal
courts by either parent.231 This power has a purpose which is
critical in Alaska. It is to give to either parent of a child not
living in Indian country the power to decide whether an
adjudication of custody by a tribal court would be inappropriate
because of the child's lack of contact with the tribe or its
culture. The Interior Department discusses this point in its
"Guidelines for State Courts":
The first four criteria in the earlier version
were all directed toward the question of
whether the child's connections with the
reservation were so tenuous that transfer back
to the tribe is not advised . . . . It is
recommended that in most cases state court
judges not be called upon to determine whether
or not a child's contacts with a reservation
are so limited that a case should not be
transferred. This may be a valid
consideration since the shock of changing
cultures may, in some cases, be harmful to the
child. This determination, however, can be
made by the parent, who has a veto over
transfer to tribal court.[232]
The protections which Congress built into ICWA will not
be available in cases decided under today's decision. There will
be no advance review of the organization and function of tribal
courts by an agency with the expertise and authority to conduct
such a review. The territorial limits of tribal courts are not
defined or established. And the vital parental veto power over
tribal court jurisdiction, a power which can be exercised by either
parent under ICWA, is simply dispensed with under today's decision.
The loss of these protections illustrates the danger of
the extrapolative method used by the majority. Not only is the
jurisdiction of tribal courts expanded to cases which Congress
considered and excluded in enacting ICWA, but important protections
which Congress built into ICWA do not survive in the majority's
extension of jurisdiction.
VIII. Even Assuming that Tribal Courts Have Inherent Sovereign
Power to Hear Child Custody Cases Not Arising in Indian
Country, the Majority Decision Is Still Erroneous Because
It Enables a Tribal Court to Utilize this Power Over a
Non-Tribal Member tc \l1 "VIII. Even Assuming that
Tribal Courts Have Inherent Sovereign Power to Hear Child
Custody Cases Not Arising in Indian Country, the Majority
Decision Is Still Erroneous Because It Enables a Tribal
Court to Utilize this Power Over a Non-Tribal Member
Even if federal case law supported the majority's
position, by holding that the inherent sovereign powers of tribes
to "regulate internal domestic relations" between their members did
extend beyond Indian country in child custody cases, the majority's
decision today would still be erroneous because it extends the
reach of this power to individuals who are not tribal members.
There is no authority to expand a tribe's inherent powers in such
a way.
A. Case Law: Tribal Inherent Sovereignty Powers Relate Only
to Tribal Members tc \l2 "A. Case Law: Tribal Inherent
Sovereignty Powers Relate Only to Tribal Members
The Supreme Court cases that have analyzed the extent of
inherent tribal sovereignty have stated that such power pertains to
internal tribal matters and tribal members only. The majority
recognizes, and even emphasizes, this.233 Thus, the Court in
Montana v. United States234 stated: "[T]he powers of self-government
. . . involve only the relations among members of a tribe . . . .
Indian tribes retain their inherent power to determine tribal
membership, to regulate domestic relations among members, and to
prescribe rules of inheritance for members."235 The Supreme Court's
"members only" emphasis in its discussions of inherent sovereignty
has been purposeful, as was noted by the Court in Duro v. Reina:236
"[In] [o]ur discussion of tribal sovereignty in Wheeler . . . [w]e
were consistent in describing retained tribal sovereignty over the
defendant in terms of a tribe's power over its members."237 Thus,
a tribal court's powers, deriving from its inherent sovereignty,
generally do not extend to non-tribal members. This was made clear
in Montana and reemphasized by the Court in Strate: "In the main,
the [Montana] Court explained, 'the inherent powers of an Indian
tribe' -- those powers a tribe enjoys apart from express provision
by treaty or statute -- 'do not extend to the activities of
nonmembers of the tribe.'"238
Throughout its discussion of inherent sovereignty, the
majority relies on many of the cases cited above, such as Montana,
Wheeler, and Reina, in support of its conclusion that the Northway
tribal court has jurisdiction in this case.239 However, only near
the end of opinion does the majority try to reconcile the fact that
while the Supreme Court authority it relies upon to establish the
concept of inherent sovereignty emphasizes inherent tribal powers
over members, the dispute in this case is actually between a tribal
member and nonmember.240
The majority sidesteps this by announcing a new rule that
is not based on supporting legal authority. That rule is: "Because
the tribe only has subject matter jurisdiction over the internal
disputes of tribal members, it has the authority to determine
custody only of children who are members or eligible for
membership."241 Thus, the majority authorizes tribal court
jurisdiction over cases involving a member Native child where both
parents are tribal members and where one parent is a tribal member
and one is not.242
In a child custody dispute, a court should have
jurisdiction over the child and the child's parents or other
custodians. The majority states that a tribe "only has subject
matter jurisdiction over the internal disputes of tribal
members."243 Where both parents are tribal members this condition
is satisfied. But it is not satisfied when one of the parents is
not a tribal member. Since "the powers of self-government . . .
involve only the relations among members of a tribe" and since
"Indian tribes retain their inherent power to . . . regulate
domestic relations among members,"244 it follows that jurisdiction
based on inherent sovereignty cannot extend to disputes involving
nonmembers. Accordingly, even assuming that a tribe's inherent
powers extend to cases not arising in Indian country, the Northway
court should not have jurisdiction in this case because its
inherent power does not encompass authority over John, who is not
a member of the Native village of Northway.
B. The Montana Exceptions Do Not Apply tc \l2 "B. The
Montana Exceptions Do Not Apply
The majority states that the consent of a nonmember
parent may be an "alternative basis for tribal court jurisdiction
in child custody cases."245 The majority cites Montana for this
consent theory.246 But Montana does not support this theory.
The majority's cite to Montana references one of the two
"Montana exceptions."247 Strate explains the two exceptions in the
context of Montana: "Montana thus described a general rule that,
absent a different congressional direction, Indian tribes lack
civil authority over the conduct of nonmembers" subject to "two
exceptions."248 The two Montana exceptions, upon which the majority
relies upon as authority to enable the Northway court to exercise
inherent sovereign power over a consenting nonmember, are as
follows:
[(1)] To be sure, Indian tribes retain
inherent sovereign power to exercise some
forms of civil jurisdiction over non-Indians
on their reservations, even on non-Indian fee
lands. 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. [And, (2)] A tribe may
also retain inherent power to exercise civil
authority over the conduct of non-Indians on
fee lands within its reservation when that
conduct threatens or has some direct effect on
the political integrity, the economic
security, or the health or welfare of the
tribe.[249]
Neither of the two Montana exceptions applies to this
case because each specifically involves the exercise of inherent
tribal power over nonmembers in Indian country. That is not the
case here. Thus, the majority's claim that "federal law supports
the determination that tribes have jurisdiction over consenting
nonmembers in some situations"250 is only true in the limited
context of nonmembers in Indian country. No Supreme Court case has
held that outside of Indian country, a tribal court has the
inherent power to exercise jurisdictional authority over a
nonmember, consenting or otherwise. Because there is no authority
to support an assertion of inherent tribal powers over nonmembers,
this is another basis for holding that the Northway tribal court
lacks jurisdiction in this case.251
C. The Absence of Subject Matter Jurisdiction Cannot Be
Waived tc \l2 "C. The Absence of Subject Matter
Jurisdiction Cannot Be Waived
Consent in the context of this case is not effective for
another reason. Whether a tribal court can hear cases not arising
in Indian country between members and nonmembers is an issue of
subject matter jurisdiction.252 The majority recognizes this.253
If, as I believe, the tribal court is not empowered to hear member
versus nonmember cases because it lacks the power to do so, then it
does not matter that the nonmember in this case consented to having
the tribal court hear her case. The tribal court is still
powerless to hear the case because the lack of subject matter
jurisdiction cannot be waived.254
D. Tribal Court Jurisdiction Over Nonmembers Denies Access
to State Courts on the Basis of an Unpermitted Racial
Classification
tc \l2 "D. Tribal Court Jurisdiction Over Nonmembers Denies
Access to State Courts on the Basis of an Unpermitted Racial
Classification
Not only do tribes not have inherent power over
nonmembers outside of Indian country, but even if such powers were
mandated by Congress, the exercise of such power over nonmembers
would be constitutionally suspect racial discrimination. This is
a complicated subject. It is not critical here because of John's
consent. But it is likely to be raised in a variety of contexts in
the future. In this dissent I will only highlight the issue by
quoting from the Department of Justice's analysis of ICWA
legislation when it was first drafted. It appears that the
original version of ICWA did not provide for any type of parental
veto over the choice of forum, as the law now does. This was a
source of concern for the Department of Justice. Then-Assistant
Attorney General, and now D.C. Circuit Judge, Patricia Wald, voiced
these concerns in a letter to Representative Morris Udall, Chairman
of the Committee on Interior and Insular Affairs:
The [ICWA] bill would appear to subject
family relations matters of certain classes of
persons to the jurisdiction of tribal courts
which are presently adjudicated in State
courts. The bill would accomplish this result
with regard to three distinct categories of
persons . . . . One class would be members of
a tribe. Another class would be nontribal
members living on reservations, and a third
would be nonmembers living off reservations.
These three classes would be denied access to
State courts for the adjudication of certain
family relations matters unless "good cause"
is shown under section 102(c) of the bill.
The general constitutional question
raised by [the bill] is whether the denial of
access to State courts constitutes invidious
racial discrimination violative of the fifth
amendment. See Bowling v. Sharp, 347 U.S. 497
(1954).
. . . .
[T]here is little support for the
constitutionality of this bill as applied to
nontribal members living on reservations and
the rationale applied by the [Supreme] Court
in [Morton v. Mancari, 417 U.S. 535 (1974) and
Fisher v. District Court, 424 U.S. 382
(1976)], would not save the bill. The simple
fact is that the parents of an Indian child
may find their substantive rights altered by
virtue of their Indian blood and the simple
fact of residence on a reservation. The Court
has never sanctioned such a racial
classification which denied substantive
rights, and we are unable to find any
persuasive reason to suggest that it would do
so.
Our conclusion with regard to nonmembers
living on reservations is even more certain in
the context of nonmembers living off
reservations. In such a situation, we are
firmly convinced that the Indian or possible
non-Indian parent may not be invidiously
discriminated against under the fifth
amendment and that the provisions of this bill
would do so.[255]
IX. Court-developed Policy Arguments are an Inappropriate Basis
Upon Which to Base Tribal Court Jurisdiction tc \l1 "IX.
Court-developed Policy Arguments are an Inappropriate
Basis Upon Which to Base Tribal Court Jurisdiction
The majority also reasons that the Northway tribal court
should have jurisdiction in today's case based on the following
rationale:
Tribal jurisdiction over child custody cases
involving member children will further the
goal under both federal and state law of best
serving the needs of Native American
children. . . . [T]he fact that many of
Alaska's Native villages are located far from
the courtrooms of our state trial courts
limits our state judicial system's ability to
respond to the needs of many Alaska
Natives. . . . By acknowledging tribal
jurisdiction, we enhance the opportunity for
Native villages and the state to cooperate in
the child custody arena by sharing resources.
Recognizing the ability and power of tribes
to resolve internal disputes in their own
forums . . . can only help in the
administration of justice for all.[256]
This statement is a commendable declaration of policy.
But the fact that this statement is just that -- a declaration of
court-made policy -- raises fundamental issues about judicial
restraint, separation of powers, and the role of the judiciary.
In Duro v. Reina,257 the Supreme Court held that a tribe's
retained sovereignty did not include the authority to impose
criminal sanctions on a nonmember Indian who had committed murder
on the tribe's reservation. The Court made this holding despite a
legitimate concern, voiced by a lower court, that to do so would
create a "jurisdictional void" between federal and Indian crimes
which might allow the defendant in this case to escape prosecution
by either federal or Indian authorities.258 The Supreme Court, with
Justice Kennedy writing for the majority, was unswayed by these
arguments, but referred to them in the concluding paragraph of the
opinion:
If the present jurisdictional scheme
proves insufficient to meet the practical
needs of reservation law enforcement, then the
proper body to address the problem is
Congress, which has the ultimate authority
over Indian affairs. We cannot, however,
accept these arguments of policy as a basis
for finding tribal jurisdiction that is
inconsistent with precedent, history, and the
equal treatment of Native American
citizens.[259]
In an interesting postscript to this case, Congress
passed a statute almost immediately after the Reina decision that
corrected the problem of the "jurisdictional void."260 Thus, in
that case, our system of separation of powers worked -- the courts
interpreted the law based on existing statutes and precedent, and
Congress, persuaded by policy arguments that existing tribal
jurisdictional schemes were inadequate, passed legislation to
enhance tribal jurisdiction and rectify the problem.
Today, the majority attempts to short-circuit this
system, by striking into an area -- the expansion of tribal court
jurisdiction based on policy arguments -- that is solely the realm
of Congress. If there is a need for out-of-Indian country tribal
court jurisdiction in custody disputes between parents of Indian
children, democratic processes are in place which can address this
need. Alaska's Senators and Congressman are knowledgeable about
and responsive to the needs of Alaska Natives. If there is a case
to be made for expanded tribal court jurisdiction our Senators and
Congressman are well-positioned to make an effective presentation.
It is Congress, not this court, which is competent to decide what
is needed and what limitations and protections are appropriate.
X. State Law Applies Outside Indian Country tc \l1 "X. State
Law Applies Outside Indian Country
The majority concludes that the tribal court may apply
its own laws and customs in this case and implies that such tribal
laws apply even if they conflict with state laws.261 The majority
implies, incorrectly, that this has always been the case.262 But
such a regime would be a radical departure from the past.263
Nevertheless, the majority supports this conclusion by relying on
Santa Clara Pueblo v. Martinez,264 which held that tribes have the
"power to make their own substantive law in internal matters, and
to enforce that law in their own forums."265 But Santa Clara Pueblo
is inapplicable to this case. That case involved a member of the
Santa Clara Pueblo tribe and her children, all of whom lived and
were raised on the Santa Clara Reservation.266 For that reason, the
allocative principle favored tribal authority. By contrast, none
of the events in the present case took place on reservation land or
other Indian country, and therefore the allocative principle favors
state authority. As I show below, the majority's conclusion
ignores this important distinction and also conflicts with the
purpose of P.L. 280 and its subsequent amendments.
A. Case Law tc \l2 "A. Case Law
The discussion above in Part V of this dissent discusses
the allocative principle in terms of whether the Northway tribal
court or state court has jurisdiction in this case. This principle
also applies to the determination of which law -- state or tribal
-- applies to a given case regardless of which tribunal has
jurisdiction. The plain language of the allocative principle makes
this clear: "Absent express federal law to the contrary, Indians
going beyond reservation boundaries have generally been held
subject to non-discriminatory state law otherwise applicable to all
citizens of the State."267 This has always been the case in
Alaska.268 Thus, even if one assumes, as I do only for purposes of
the discussion in this section, that the Northway court has
jurisdiction in this case, it does not logically follow that tribal
law controls. To the contrary, because this case arose outside of
Indian country, the allocative principle requires the application
of state, not tribal, law.
The argument, made by the majority, that the Supreme
Court never contemplated applying the allocative principle to
situations like those in Alaska where tribal membership has been
separated from Indian country,269 is incorrect. Solem v. Bartlett
did just that.270 Moreover, the tribe in DeCoteau had lost its
reservation in much the way those tribes that had reserves in
Alaska did, by an act of Congress.271 Yet the Supreme Court in
DeCoteau confirmed the application of state law under the general
allocative principle to a child custody case which involved tribal
children residing within the boundaries of the former reservation
but not in Indian country.272 And, in Venetie II, the Supreme Court
confirmed the application of this principle in its most recent
Indian law case arising from Alaska.273
The Supreme Court also applied the allocative principle
to Alaska Natives in Organized Village of Kake.274 There the Court
noted that Kake Natives had not "been provided with a reservation,"
and there was "no statutory authority under which the Secretary of
Interior might permit [Kake] to operate fish traps contrary to
state law."275 Thus, the Court held that Alaska's fishing laws
applied to the tribe.276 The interest in continuing the traditional
use of fish traps was strong given that the Kake Indian community
was "entirely dependent upon salmon fishing."277 Yet, this
important interest had to give way to state law because the tribe
did not reside on a reservation and no federal law expressly
permitted it to ignore Alaska law. For similar reasons, because
there is no statute authorizing tribal courts to apply tribal law
to child custody disputes not covered by ICWA and not arising in
Indian country, tribal custody laws must give way to state law if
they conflict.
The majority's decision allowing tribal law, outside of
Indian country, to trump state law simply ignores Kake, Mescalero
Apache Tribe, DeCoteau, Solem, Venetie II, and the other cases that
establish the principle that Indians outside of Indian country are
subject to state laws.
B. Section 4 of Public Law 280 Requires that the Laws
Applied in Tribal Court Must be Consistent with State
Law tc \l2 "B. Section 4 of Public Law 280 Requires that
the Laws Applied in Tribal Court Must be Consistent with
State Law
The majority's decision is also mistaken because it
ignores section 4(c) of P.L. 280. This section states:
Any tribal ordinance or custom heretofore or
hereafter adopted by an Indian tribe, band, or
community in the exercise of any authority
which it may possess shall, if not
inconsistent with any applicable civil law of
the State, be given full force and effect in
the determination of civil causes of action
pursuant to this section.[278]
The language of this statute is straightforward: In case of
conflict between state and tribal law, P.L. 280 provides that state
law governs.
To read this section as only applying to litigation in
state courts would be erroneous because it would allow two sets of
conflicting laws to govern the same transaction or occurrence. For
example, state law prohibits custody preferences based on gender.279
The laws of some tribes may be to the contrary. They may, for
example, employ the "tender years" presumption rejected by state
law.280 As another example, state law provides that in a custody
dispute between a parent and a non-parent, the parent is to be
preferred absent a clear showing that parental custody will be
harmful to the child.281 The laws of some tribes may be different.
And as a third example, state law provides for scheduled child
support to be paid by an obligor parent.282 Some tribes may not
replicate this schedule.
If tribal laws provide for a particular custodial
preference the litigant who will benefit by that preference will
have a strong incentive to file in tribal court before his or her
opponent files in state court. The reverse of course is also true.
And if tribal courts are not bound by the state child support
schedule and provide either lower child support or none at all,
potential obligor parents will have a strong incentive to file
their cases in tribal courts before potential obligees file in
state court.
In my view, P.L. 280 clearly requires state law to govern
in case of conflict between state and tribal law. The majority
holds otherwise. Thus state law can be circumvented if one
litigant files in tribal court before the other files in state
court. Congress, in enacting P.L. 280, found that Indians would be
benefitted by the "extension of State civil jurisdiction to" Indian
country.283 With a goal of making Indians "truly first class
citizen[s],"284 Congress "deemed desirable" the extension to
reservations "the substantive civil laws of the respective states
insofar as those laws are of general application to private persons
or private property . . . ."285 It seems clear that the model
Congress had in mind was that Indian country in P.L. 280 states
would be governed by state laws of general application. By
necessary implication, Congress must also have intended that state
laws would govern outside of Indian country, and that there would
not be, as the majority holds, sets of conflicting laws which can
be selected by a litigant who wins a race to a courthouse.286
C. The Rationale of Erie v. Tompkins tc \l2 "C. The
Rationale of Erie v. Tompkins
The majority's result also ignores the fundamental
rationale of the landmark case, Erie Railroad Co. v. Tompkins.287
Erie overruled Swift v. Tyson,288 which held that federal courts,
sitting in diversity, were not necessarily bound by the prior
decisions of the courts of the states whose law was being applied.
Rather, federal courts, in the interests of developing "general"
federal law, could independently evaluate the state law at issue,
even if that meant reaching a result different from that which a
state court would reach.289
In Erie, the Swift v. Tyson doctrine was abandoned, in
part, because it made "rights enjoyed under the unwritten 'general
law' vary according to whether enforcement was sought in the state
or in the federal court" and it "had prevented uniformity in the
administration of the law of the state."290 Thus, Erie's focus was
on maintaining the uniformity of substantive law regardless of the
forum chosen by the litigants. As Justice Frankfurter wrote in a
later case: "The nub of the policy that underlies Erie R. Co. v.
Tompkins is that for the same transaction the accident of a suit by
[a party to the dispute] in a federal court instead of in a State
court a block away, should not lead to a substantially different
result."291
The majority's decision allowing tribal law to trump
state law creates the problem that Erie and its progeny sought to
correct. When a marriage is breaking up, today's decision will
create incentives for each party to the marriage to file first in
the forum whose laws are thought to be more favorable. Again, it
is very unlikely that Congress intended such a result, for it is
difficult to see how any rational law-making authority could
believe that it is desirable to permit conflicting laws to govern
the same transaction.
XI. Conclusion tc \l1 "XI. Conclusion
The majority's opinion today is very broad. (1) It holds
that a tribe has jurisdiction to adjudicate child custody cases not
arising in Indian country, contrary to the general principle that
allocates functions between tribes and states, and contrary to two
United States Supreme Court decisions which have stated that in
custody cases tribal jurisdiction based on inherent sovereignty
does not extend to cases not arising in Indian country. (2) In the
face of many decades of contrary Supreme Court precedent, and
without congressional authorization, it holds that Alaska Natives,
outside of Indian country, are subject to tribal law, even if such
laws conflict with those of the state. And (3) it gives tribal
courts jurisdictional authority over any parent (tribal member or
not, and Native Alaskan or not) of a child who is a tribal member
or eligible for tribal membership.292 Given the large number of
Native Alaskans in the state293 and the significant number of
children born from marriages and relationships between Natives and
non-Natives, the number of Alaskan citizens who will find
themselves subject to mandatory tribal court jurisdiction is very
large.294
Today's decision also raises many more troubling
questions than it answers. I mention just a few.
(1) What type and kind of tribal court will be empowered
to exercise the authority conferred by today's decision? The
majority speaks about tribal courts as if they are all the same.
They are not. Indeed, they are markedly different in terms of
structure, size, expertise, and experience.295 Sovereign status was
extended, via the Bureau of Indian Affairs Tribal Recognition List,
to 226 Native entities in Alaska.296 Will all such sovereigns
exercise tribal court functions? Even those villages with
populations of fewer than fifty people?297
(2) Tribal courts are not bound by the United States
Constitution. As Justice Stevens noted in Merrion v. Jicarilla
Apache Tribe, "Tribes may enforce discriminatory rules that would
be intolerable in a non-Indian community. The equal protection
components of the Fifth and Fourteenth Amendments, which limit
federal or state authority, do not similarly limit tribal power."298
What rules will apply to consenting nonmembers, or nonconsenting
nonmembers?
(3) The Supreme Court has held that the powers "to
tax,"299 "to prescribe and enforce internal criminal laws," "to
regulate domestic relations among members," and "to prescribe rules
of inheritance for members,"300 all derive from a tribe's inherent
sovereign power. Today, the majority holds that the child custody
component of the domestic relations power extends beyond Indian
country. Does it logically follow from today's decision that
tribal criminal and tort law will follow members outside of Indian
country? Can a village council on the Tanana River exercise its
sovereign powers to prescribe rules of inheritance for its members,
including those who live in Anchorage or Los Angeles, or London?
What are the geographical limits, if any, to the "membership
sovereignty"301 that the majority recognizes today? And what
contacts suffice to give a tribal court personal jurisdiction?
(4) More Native Alaskans live in, or within easy driving
distance of, cities served by superior courts than live in villages
distant from superior courts.302 And many Native Alaskans live very
far from the villages with which they are associated. For example,
about one-fifth (more than 20,000) of all resident Native Alaskans
live in the Municipality of Anchorage.303 By making these Native
Alaskans subject to the jurisdiction of distant village tribal
courts, will today's decision create the very problem the majority
believes it is solving -- namely, the problem of requiring Native
Alaskans to travel long distances to have their custody disputes
adjudicated? And will the interests of children born and raised,
for example, in Anchorage be best served if their child custody
cases take place in tribal courts in distant villages about which
they know little or nothing? Indeed, will the interests of Native
children, no matter where they reside, be best served if their non-
custodial parents are allowed by a tribal court order to pay child
support that is significantly less than they would pay under Alaska
Civil Rule 90.3?
I do not know the answers to these questions. One thing
that I am sure of, however, is that the ramifications of this case
will be felt for many years. Confusion and litigation will
proliferate as state and tribal courts try to work out the
consequences of this opinion.
Finally, it is important to note what this case is
ultimately about -- the balance of tribal and state power within
Alaska. As Chief Justice Rehnquist stated in Washington v.
Confederated Tribes of the Colville Indian Reservation, "[a]t issue
here is not only Indian sovereignty, but also necessarily state
sovereignty as well."304 The plenary power of the state under the
Alaska Constitution is asserted by a system of uniform laws applied
equally to all citizens, and by state courts which "shall
constitute a unified judicial system . . . ."305 The result in this
case cannot pass muster under the Alaska Constitution unless
mandated by federal law. Reduced to its essence the question here
is whether under the circumstances of this case the laws of the
United States require that the plenary power of the state give way
to tribal power. The answer given by the majority is "yes."
Appropriate regard for the Alaska Constitution requires that such
an answer not be given unless there are federal laws which require
a cession of state authority. Because such laws do not exist, I
respectfully dissent.
ADDENDUM: P.L. 280 HISTORY AND ANALYSIS
TABLE OF CONTENTS
I. P.L. 280: Introduction 160
A. P.L. 280 and Amendments 161
B. The Supreme Court and P.L. 280 167
II. P.L. 280 As Amended Conferred Exclusive Jurisdiction 169
A. The 1970 Amendment to P.L. 280 171
B. Contemporaneous Administrative Construction 175
III. Conclusion 181
I. P.L. 280: Introduction tc \l1 "I. P.L. 280: Introduction
After briefly discussing Public Law (P.L.) 280 and Native
Village of Nenana v. State, Department of Health & Social
Services,1 the majority concludes that "it is neither necessary nor
appropriate at this time to reach the question of whether Nenana
and its progeny were wrongly decided."2 The majority then notes
that its decision today "creates a disjunction in Indian law
jurisprudence" because it leaves tribes without Indian country with
greater powers than those with Indian country.3 Because the
appellant and amici urge us to overrule the Nenana line of cases
and because I believe that courts, including this one, will soon be
required to address the disjunction mentioned by the majority, I
set forth my views on this issue. For the reasons outlined below,
I continue to believe Nenana properly held that P.L. 280 granted
states exclusive jurisdiction in child custody matters.
A. P.L. 280 and Amendments tc \l2 "A. P.L. 280 and
Amendments
P.L. 280 was enacted in 19534 and amended in 19585 and
1970.6 Because sections of P.L. 280 are interrelated, I have set
out the text of the act in the margin.7
P.L. 280 conferred criminal and civil jurisdiction on
five "mandatory" states: California, Minnesota, Nebraska, Oregon,
and Wisconsin.8 Section 2, the criminal portion, provided that
each state would have
jurisdiction over offenses committed by or
against Indians in the areas of Indian country
. . . to the same extent that such State has
jurisdiction over offenses committed elsewhere
within the State, and the criminal laws of
such State shall have the same force and
effect within such Indian country as they have
elsewhere within the State.[9]
Section 4 conferred civil jurisdiction:
Each of the States listed . . . shall
have jurisdiction over civil causes of action
between Indians or to which Indians are
parties which arise in the areas of Indian
country listed . . . .[10]
Section 4 also provided that state civil laws of general
application should apply in Indian country as they do elsewhere:
those civil laws of such State that are of
general application to private persons or
private property shall have the same force and
effect within such Indian country as they have
elsewhere within the State . . . .[11]
Important provisos were added by subsections (b) and (c)
of section 4. Subsection (b) emphasized that alienation or
taxation of trust or restricted property was not authorized.12
Under subsection (c), tribal ordinances or customs were to be given
effect in the adjudication of civil cases "if not inconsistent with
any applicable civil law of the State . . . ."13
Comprehensive congressional reports accompanied P.L. 280.
The essence of the legislative history is contained in three
paragraphs in the Report of the House Committee on Interior and
Insular Affairs, which was subsequently incorporated into the
Senate Report:
Need for such legislation on a general,
rather than limited basis is grounded on the
following: These States lack jurisdiction to
prosecute Indians for most offenses committed
on Indian reservations or other Indian
country, with limited exceptions. The appli-
cability of Federal criminal laws in States
having Indian reservations is also limited.
The United States district courts have a
measure of jurisdiction over offenses
committed on Indian reservations or other
Indian country by or against Indians, but in
cases of offenses committed by Indians against
Indians that jurisdiction is limited to the
so-called 10 major crimes: murder, man-
slaughter, rape, incest, assault with intent
to kill, assault with a dangerous weapon,
arson, burglary, robbery, and larceny.
As a practical matter, the enforcement of
law and order among the Indians in the Indian
country has been left largely to the Indian
groups themselves. In many States, tribes are
not adequately organized to perform that
function; consequently, there has been created
a hiatus in law-enforcement authority that
could best be remedied by conferring criminal
jurisdiction on States indicating an ability
and willingness to accept such responsibility.
Similarly, the Indians of several States
have reached a stage of acculturation and
development that makes desirable extension of
State civil jurisdiction to the Indian country
within their borders. Permitting the State
courts to adjudicate civil controversies
arising on Indian reservations, and to extend
to those reservations the substantive civil
laws of the respective States insofar as those
laws are of general application to private
persons or private property, is deemed
desirable.[14]
In 1958, P.L. 85-615 extended both the criminal and civil
provisions of P.L. 280 to "all Indian country" within Alaska.15
Three paragraphs from the Report of the Senate Committee on
Interior and Insular Affairs distill the reasons for this
amendment:
One of the needs for the enactment of the
proposed legislation is due to a decision of
the United States District Court for the
District of Alaska in the cases of In re
McCord (No. A-13,363) and In re Nickanorka
(No. A-13,364), wherein the defendants were
charged with statutory rape under the
Territorial law of Alaska. The court held (1)
that the Territorial law did not apply because
the incident occurred in Indian country and
(2) that the Federal law mentioned above and
popularly referred to as the Ten Major Crimes
Act (18 U.S.C. 1153) did not apply because
statutory rape is not included in the Federal
crime of rape. The defendants were therefore
released.
In construing the Federal statute the
court also decided that the native village of
Tyonek, Alaska, where the rape occurred, came
within the definition of Indian country. Such
a construction affects a large number of other
native villages in Alaska similarly situated.
The committee has been advised that these
native villages do not have adequate machinery
for enforcing law and order. They have no
tribal court, no police, no criminal code, and
in many instances no formal organization.
This is for the reason that the Territorial
government in Alaska has maintained law and
order in the native villages as well as in the
rest of Alaska and the native tribal councils
have had no reason to nor have they ever
exercised these functions. Since the natives
are not prepared to take over these
activities, the recent court decision has left
the villages and the people without
protection. The instant legislation seeks to
remedy this situation by restoring what, until
the court decision, was the actual practice in
the enforcement of the law in the Indian
country in Alaska.
The bill also extends the Territorial law
of Alaska to Indian country with regard to
civil matters. This action is consistent with
previous enactments of Congress, as in the
case of Public Law 280, 83d Congress, whereby
criminal and civil jurisdiction over Indian
country within the States of California,
Minnesota, Nebraska, Oregon, and Wisconsin was
transferred to those States.[16]
In 1970 Congress again amended P.L. 280 by enacting P.L.
91-523. P.L. 91-523 excepted the Metlakatla Indian community from
the area of Indian country subject to the exclusive criminal
jurisdiction of Alaska, changing 18 U.S.C. 1162(a) (section 2 of
P.L. 280).17 And it described the Indian country subject to the
criminal jurisdiction of the mandatory states as "areas over which
the several States have exclusive jurisdiction."18
The legislative history of the 1970 amendment is
extensive and I will discuss it at some length later in this
addendum.19 It suffices for purposes of this introduction to quote
the one sentence "Purpose" section of the House Report:
The purpose of the proposed legislation
is to amend section 1162 of title 18, United
States Code, by adding language permitting the
Metlakatla Indian community on the Annette
Islands in Alaska to exercise jurisdiction
over minor offenses concurrent with the State
of Alaska.[20]
B. The Supreme Court and P.L. 280 tc \l2 "B. The Supreme
Court and P.L. 280
In Washington v. Confederated Bands and Tribes of the
Yakima Indian Nation,21 the Supreme Court declined to address the
question of whether P.L. 280 conferred exclusive or concurrent
jurisdiction on the states.22 Nevertheless, the Court has made
statements suggestive of exclusive state jurisdiction. For
example, in Yakima Indian Nation, the state of Washington enacted
a law whereby it assumed "[f]ull criminal and civil jurisdiction to
the extent permitted by Pub. L. 280" but which only "extended to
all fee lands in every Indian reservation and to trust and allotted
lands therein when non-Indians were involved."23 In analyzing the
effect of this statute, the Court stated that "[s]tate jurisdiction
is complete as to all non-Indians on reservations and is also
complete as to Indians on nontrust lands [on the reservation]."24
Earlier, in Organized Village of Kake v. Egan,25 the
Supreme Court apparently endorsed the view that P.L. 280 granted
exclusive jurisdiction to the states:
In 1953 Congress granted to several States
full civil and criminal jurisdiction over
Indian reservations, consenting to the
assumption of such jurisdiction by any
additional States making adequate provision
for this in the future. 67 Stat. 588, 18
U.S.C. 1162, 28 U.S.C. 1360. Alaska was
added to the list of such States in 1958, 72
Stat. 545. This statute disclaims the
intention to permit States to interfere with
federally granted fishing privileges or uses
of property.[26]
The words "complete" in Yakima Indian Nation and "full" in Kake are
terms most logically associated with exclusive, rather than
concurrent, jurisdiction.
Further, in Solem v. Bartlett,27 the court strongly
implied that state criminal jurisdiction is exclusive, rather than
concurrent, with tribal jurisdiction, stating that: "[Within Indian
country] Tribes exercise concurrent jurisdiction over certain minor
crimes by Indians, 18 U.S.C. 1152, 1153, unless a State has
assumed jurisdiction under 1162 [P.L. 280 2]."28
The Court also addressed the extent of state civil
jurisdiction under P.L. 280 in Bryan v. Itasca County29 and
California v. Cabazon Band of Mission Indians.30 According to the
Court, section 4 of P.L. 280 was "primarily intended to redress the
lack of adequate Indian forums for resolving private legal disputes
between reservation Indians."31 The Court stated clearly that this
jurisdiction did not include the power to tax or "general civil
regulatory authority"; however, section 4 of P.L. 280 did "grant
States jurisdiction over private civil litigation involving
reservation Indians in state court[s]."32 Authority over private
civil litigation is the issue in the present case.
II. P.L. 280 As Amended Conferred Exclusive Jurisdiction tc \l1
"II. P.L. 280 As Amended Conferred Exclusive Jurisdiction
In Native Village of Nenana v. State, Department of
Health & Social Services,33 we held that P.L. 280 grants Alaska
exclusive jurisdiction to adjudicate cases involving the custody of
Native children.34 The issue arose in the context of a child-in-
need-of-aid proceeding in which the village of Nenana sought to
transfer jurisdiction from the state court under the Indian Child
Welfare Act.35 Under section 1918(a) of that act, "any Indian tribe
which became subject to State jurisdiction pursuant to" P.L. 280
"may reassume jurisdiction over child custody proceedings."36
However, reassumption is permitted only if the tribe presents "a
suitable plan to exercise such jurisdiction" to the Secretary of
the Interior and the Secretary approves the plan.37 No reassumption
plan had been approved for Nenana,38 but Nenana argued that this was
unnecessary because P.L. 280 did not preempt its jurisdiction and
that it continued to have concurrent jurisdiction with the state
over children's matters. We rejected this contention and concluded
that "Congress intended that Public Law 280 give certain states,
including Alaska, exclusive jurisdiction . . . ."39 We followed
Nenana in In re K.E.40 and In re F.P.41
I believe Nenana, K.E. and F.P. were correctly decided.
Congress in 1970 explicitly described the Indian country subject
to state jurisdiction under P.L. 280 "as areas over which the
several States have exclusive jurisdiction."42 The 1970 amendment
was consistent with the prior text of P.L. 280 which the Department
of the Interior interpreted as bestowing exclusive jurisdiction on
the states.43
A. The 1970 Amendment to P.L. 280 tc \l2 "A. The 1970
Amendment to P.L. 280
In 1970 Congress enacted P.L. 91-523, which amended the
codification of P.L. 280 set out in 18 U.S.C. 1162.44 The area
of Indian country in which the State of Alaska was granted criminal
jurisdiction was changed in section 1 from "all Indian country" to
"[a]ll Indian country within the State, except that on Annette
Islands, the Metlakatla Indian community may exercise jurisdiction
over offenses committed by Indians in the same manner in which such
jurisdiction may be exercised by Indian tribes in Indian country
over which State jurisdiction has not been extended."45 This
language contrasts with the exceptions for reservations pertaining
to other states in section 2 of P.L. 280. For example, in
Minnesota the Indian country affected is "all Indian country within
the State, except the Red Lake Reservation."46 The reason for the
difference was well considered. On excepted reservations, such as
Red Lake, the writ of state law under P.L. 280 did not run. With
respect to Metlakatla, Congress intended that state law would
continue to apply but that the Metlakatla Indian community would
have concurrent jurisdiction over those offenses committed by
Indians which would be within the jurisdiction of tribes located in
areas where P.L. 280 does not apply.
This amendment is important because it recognizes that
the Metlakatla community lacked concurrent jurisdiction prior to
the amendment. This, in turn, represents a recognition of pre-
amendment exclusive jurisdiction in the state. Although the
amendment affected only criminal jurisdiction, the language of
section 2 of P.L. 280, conferring criminal jurisdiction on the
states, and section 4 of P.L. 280, conferring civil jurisdiction on
the states, is parallel. Section 2(a) provides: "Each of the
States listed in the following table shall have jurisdiction over
offenses . . . to the same extent that such State has jurisdiction
over offenses committed elsewhere within the State."47 The language
of section 4(a) is: "Each of the States listed in the following
table shall have jurisdiction over civil causes of action . . . to
the same extent that such State has jurisdiction over other civil
causes of action . . . ."48 In view of these similarities it is
impossible to conclude that Congress intended to confer on the
states exclusive criminal jurisdiction, but only concurrent civil
jurisdiction. Indeed, the Department of the Interior reported to
Congress with respect to the 1970 amendment that P.L. 280, when
made applicable to Alaska, "acted to remove, with limited
exceptions, the civil and criminal jurisdiction for law and order
purposes previously held by the Indian and native groups and the
Federal Government."49 The first section of the 1970 amendment thus
reflected Congress's belief that P.L. 280, as applied to Alaska,
granted exclusive jurisdiction to the state.
Section 2 of the 1970 amendment reflects more than merely
a belief of Congress:
Subsection (c) of section 1162 of title 18
United States Code, is amended to read as
follows: "(c) The provisions of section 1152
and 1153 of this chapter shall not be
applicable within the areas of Indian country
listed in subsection (a) of this section as
areas over which the several States have
exclusive jurisdiction.[50]
Prior to this amendment, subsection (c) of section 1162, a part of
section 2 of P.L. 280, provided: "The provisions of sections 1152
and 1153 of this chapter shall not be applicable within the areas
of Indian country listed in subsection (a) of this section."51
U.S.C. 1152 extends the criminal laws of the United States to
Indian country but does not apply to offenses committed by one
Indian against another. U.S.C. 1153 is the so-called Major
Crimes Act which extends the criminal law of the United States to
major felonies committed by one Indian against another in Indian
country. Section 2 of the 1970 amendment was necessary because
under section 1 Metlakatla remained Indian country covered by P.L.
280. But Congress wanted the Indian community to have concurrent
jurisdiction with the state in that area. Congress therefore chose
to define the remaining Indian country in Alaska covered by P.L.
280 and all Indian country in the other five states, except for the
excepted reservations, as "areas over which the several States have
exclusive jurisdiction."52
This language is more than merely an expression of
Congress's belief that P.L. 280 granted exclusive jurisdiction to
the states; it ratifies that belief. It cannot be dismissed as
merely the opinion of a later Congress concerning the meaning of a
law passed by an earlier Congress. The later Congress changed the
original act's language to both reflect and enact its belief. As
such, P.L. 280 read in conjunction with its 1970 amendment more
than adequately rebuts the presumption favoring tribal jurisdiction
in Indian country because "Congress has expressly provided that
State laws shall apply."53
The 1970 amendment's importance should not be dismissed
as merely the view of a subsequent Congress regarding the intent of
an earlier one. In United States v. Philadelphia National Bank54and
South Dakota v. Yankton Sioux Tribe55 the Supreme Court observed
that "the views of a subsequent Congress form a hazardous basis for
inferring the intent of an earlier one."56 The references in
Yankton Sioux and Philadelphia National Bank were not amendatory to
previous acts of Congress and are thus distinguishable from the
present case. Moreover, in Bryan, a case that actually focuses on
interpreting P.L. 280, the Supreme Court observed that
"intervening" acts of Congress that are "intimately related" to
jurisdictional issues of Indian law should be considered:
Title IV of the 1968 Act is intimately related
to 4, as it provides the method for further
state assumptions of the jurisdiction
conferred by 4, and we previously have
construed the effect of legislation affecting
reservation Indians in light of "intervening"
legislative enactments.[57]
There is no question that P.L. 91-523, the 1970 amendment, is
"intimately related" to P.L. 85-615, the 1958 amendment that added
Alaska to P.L. 280. Its unambiguous purpose was to modify the 1958
amendment. As such, the 1970 amendment is particularly probative
of Congress's intent in enacting P.L. 85-615.
B. Contemporaneous Administrative Construction tc \l2 "B.
Contemporaneous Administrative Construction
In determining a statute's meaning, courts will defer to
the contemporaneous construction of the statute given by an agency
charged with its administration.58 Contemporaneity of construction
is important because often agency personnel have assisted in
formulating the legislation and are thus knowledgeable of its
intent and meaning.59 Interpretations which contradict contempora-
neous interpretations, on the other hand, are entitled to little
weight.60
These principles apply to this case because the
Department of the Interior, contemporaneously with the passage of
P.L. 280 and for a long period of time thereafter, interpreted P.L.
280 as conferring exclusive jurisdiction on the states. A 1954
departmental opinion explained that P.L. 280 conferred exclusive
criminal jurisdiction on the states.61 This confirmed an earlier
departmental interpretation that the jurisdiction conferred by P.L.
280 was exclusive and which gave the following textual analysis for
that conclusion:
Although there has been no interpretation of
the act of August 15, 1953 (Public Law 280 -
83d Cong.), by the Federal courts, it is our
view that the act, by providing that the State
shall have jurisdiction over crimes and
offenses committed by or against Indians in
the Indian country to the same extent that the
State has jurisdiction over crimes and
offenses committed elsewhere within the State,
except as limited in Section 2(b), made such
jurisdiction of the State exclusive. The
extent of the State's jurisdiction is full and
complete and permits of no such jurisdiction
by any other body save the Federal Government
and subordinate agencies of the State itself.
The act also explicitly states that the
criminal laws shall have the same force and
effect within Indian country as they have
elsewhere within the State. The effect of
this provision clearly is to extend both the
substantive and procedural laws of the State
to crimes committed by Indians. Thus, State
law defines not only the criminal offenses
against the State and the penalties therefor,
but it also defines the courts in which and
the manner in which persons accused of
committing such offenses are to be tried.[62]
These contemporaneous interpretations of exclusivity were
published and thus known to Congress when it extended P.L. 280 to
Alaska in 1958. As they were not addressed or changed, they were
presumably approved by the 1958 Congress.63 The Senate Report
accompanying the 1958 amendment states that under P.L. 280
"criminal and civil jurisdiction over Indian country within [the
five mandatory states] was transferred to those States."64 As the
primary meaning of "transfer" in this context is the conveyance of
authority from one entity to another,65 the report suggests that the
committee agreed with the Department's view that the state's
jurisdiction was exclusive.
The Department continued to interpret P.L. 280 as vesting
exclusive jurisdiction in the states into the 1970's. I have
previously discussed the 1970 amendment to P.L. 280.66 The House
Report regarding the 1970 amendment indicates a shared assumption
by Commissioner Bruce of the Department of the Interior's Bureau of
Indian Affairs and the House Judiciary Committee that P.L. 280 as
applied to Alaska effectively eliminated all tribal jurisdiction
over minor offenses. The report states that Metlakatla originally
had jurisdiction over minor criminal offenses
under its federally recognized government.
However, when the act of August 8, 1958
[applying P.L. 280 to Alaska] was passed
giving Alaska jurisdiction over offenses by or
against Indians in all Indian country within
the Territory of Alaska, it had the effect of
eliminating the legal basis for the
jurisdiction exercised by the community over
minor offenses. As Commissioner Bruce stated
at the hearing, enactment of the bill would
reinvest the Metlakatla Community Council with
local legislative authority and police powers
to enforce its laws over minor criminal
offenses concurrently with the State.[67]
A letter written by Undersecretary of the Interior
Russell to the Senate Committee on the Judiciary concerning the
1970 amendment clarifies the Department's position on the transfer
of exclusive jurisdiction and makes it clearly applicable to the
civil as well as the criminal sections of P.L. 280:
Since 1958, the State of Alaska has had the
responsibility for providing law and order
services to Indians in the Indian country
within its borders. The transfer of such
jurisdiction to Alaska acted to remove, with
limited exceptions, the civil and criminal
jurisdiction for law and order purposes
previously held by the Indian and native
groups and the Federal Government. This bill
would reinvest the Metlakatla Community
Council with local legislative authority and
police powers to enforce its law over minor
criminal offenses concurrently with the
State.[68]
By 1978 the Department had changed its views. It began
to regard P.L. 280 as a grant of concurrent jurisdiction to the
state.69 In 1991 the Ninth Circuit adopted the same position.70
I do not believe that P.L. 280 was designed to terminate
Indian reservations or to eliminate all tribal authority. Tribal
power granted by federal law over fish and game and trust property
is specifically preserved under sections 2 and 4 of that act. But
P.L. 280 was enacted in the heyday of what one authority has
described as "the termination era" of 1945-1961.71 By contrast, the
1970's were part of a different trend in Indian law, "the self-
determination era."72 This period is "characterized by expanded
recognition and application of the powers of tribal self-
government, and by the general exclusion of reservations from state
authority."73 The 1978 departmental opinion should, therefore, be
seen as consistent with the trends of the period during which it
was issued. However, the earlier departmental opinions -- those
contemporaneous with the passage of P.L. 280 and its 1958 and 1970
amendments -- were obviously more in tune with the Congresses which
enacted and amended P.L. 280. As such, it is these departmental
opinions which require our deference, not the later departmental
opinions that contradict the contemporaneous interpretations of
P.L. 280.74
III. Conclusion tc \l1 "III. Conclusion
Congress in 1970 explicitly described the Indian country
subject to state jurisdiction under P.L. 280 "as areas over which
the several States have exclusive jurisdiction."75 This enactment
was consistent with the text and the contemporaneous and long-
standing interpretation of P.L. 280 by the Department of the
Interior that the act bestowed exclusive jurisdiction on the
states. For these reasons, I believe that Congress intended P.L.
280 as a grant of exclusive jurisdiction to the states.
Accordingly, our decisions in Nenana, K.E., and F.P. were correct.
Former AS 25.30.010 et seq.
25 U.S.C. 1901 et seq.
118 S. Ct. 948 (1998).
722 P.2d 219 (Alaska 1986).
843 P.2d 1214 (Alaska 1992).
See Hydaburg Coop. Ass'n v. Hydaburg Fisheries, 925 P.2d
246, 248 (Alaska 1996); In re T.N.F., 781 P.2d 973, 975 (Alaska
1989).
See Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588
(codified as amended at 18 U.S.C. 1162, 25 U.S.C. 1321-26, 28
U.S.C. 1360).
25 U.S.C. 1901 et seq.
See 722 P.2d at 220.
See id. at 221.
See id.
25 U.S.C. 1918(a).
See 28 U.S.C. 1360(a). Enacted in 1953, P.L. 280
required five states to assume civil and criminal jurisdiction over
affairs in Indian country, and allowed other states to assume such
jurisdiction voluntarily. In 1958, Alaska was added to the list of
mandatory P.L. 280 jurisdictions. See Act of Aug. 8, 1958, P.L.
No. 85-615, 2, 72 Stat. 545.
See Nenana, 722 P.2d at 221.
See id.
944 F.2d 548 (9th Cir. 1991).
See id. at 550.
See id. at 556, 558.
Id. at 556.
See id. at 559.
See id. at 562.
757 P.2d 32 (Alaska 1988).
In re F.P., 843 P.2d 1214, 1215 (Alaska 1992) (internal
ellipsis and citation omitted).
See id. at 1215-16.
See id. at 1216. But see id. at 1217-18 (Rabinowitz
C.J., dissenting) (reasoning that "it is inconsistent with the
doctrine of inherent tribal sovereignty to conclude that 1918 of
the ICWA and Public Law 280, taken together, divest tribes of even
concurrent jurisdiction over child custody matters" (citation
omitted)).
See 25 U.S.C. 1911, 1918.
Although the superior court ruled that ICWA did not apply
to this custody dispute and neither party has appealed this aspect
of the court's decision, Mr. Baker now argues that ICWA does apply.
Even though Mr. Baker arguably has not preserved this issue for
appeal, this court can affirm on any grounds. See Gunderson v.
University of Alaska, Fairbanks, 922 P.2d 229, 236 n.9 (Alaska
1996). Moreover, we address the question of ICWA's applicability
because it is "critical to a proper and just decision," and the
"parties have had an opportunity to brief it." In re K.E., 744
P.2d 1173, 1174 (Alaska 1987) (citation omitted).
See 25 U.S.C. 1901.
25 U.S.C. 1902.
H.R. Rep. No. 95-1386, at 23 (1978), reprinted in 1978
U.S.C.C.A.N. 7530, 7546.
H.R. Rep. No. 95-1386, at 31.
Guidelines for State Courts; Indian Child Custody
Proceedings, 44 Fed. Reg. 67,584, 67,587 (1979). Although the
Bureau of Indian Affairs did not promulgate these guidelines as
regulations, they do represent its interpretation of the statute
and as such the guidelines have important but not controlling
significance. See Batterton v. Francis, 432 U.S. 416, 424-25
(1977).
See Walksalong v. Mackey, 549 N.W.2d 384, 387 (Neb.
1996); see also In re Defender, 435 N.W.2d 717, 721-722 (S.D.
1989).
We note that ICWA's inapplicability to all inter-parental
custody disputes was an underlying assumption of our decision in
J.W. v. R.J., 951 P.2d 1206, 1214 (Alaska 1998).
See 118 S. Ct. at 954-55.
The relevant portion of P.L. 280 reads as follows:
(a) Each of the States listed in the
following table shall have jurisdiction over
civil causes of action between Indians or to
which Indians are parties which arise in the
areas of Indian country listed opposite the
name of the State to the same extent that such
State has jurisdiction over other civil causes
of action . . . :
State of Indian country affected
Alaska All Indian country within
the State . . . .
28 U.S.C. 1360(a).
43 U.S.C. 1601 et seq.
See id. at 1601(a).
See id. at 1603.
See Alaska v. Native Village of Venetie Tribal Gov't
(Venetie II), 118 S. Ct. 948, 951 (1998).
See 18 U.S.C. 1151; Venetie II, 118 S. Ct. at 952.
See 43 U.S.C. 1610(b). The sole post-ANCSA Indian
reservation in Alaska is the Metlakatla Reservation on the Annette
Islands. See Metlakatla Indian Community, Annette Island Reserve
v. Egan, 362 P.2d 901, 920 (Alaska 1961), rev'd in part, 369 U.S.
45, 54-55 (1962).
See Venetie II, 118 S. Ct. at 954-55.
As Mr. Baker notes, some Indian country may still exist
in Alaska under the second definition, Indian allotments. There
has been no contention that Northway Village occupies such an
allotment, however, and for the purposes of this appeal we assume
that Northway Village is not Indian country.
The United States argues that our prior interpretation of
P.L. 280 remains relevant even if Northway Village does not occupy
Indian country because it would be contrary to established law to
conclude that a tribal court had greater powers outside, rather
than inside, of Indian country. It is true that, generally, Indian
nations possess greater powers in Indian country than they do
outside it. See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S.
130, 137 (1982) (holding that only in Indian country may tribes
exercise powers over nonmembers). And at least one federal
reservation does still exist in Alaska. Thus, the United States
correctly notes in its brief that the recognition of Northway's
jurisdiction creates a disjunction in Indian law jurisprudence.
But this inconsistency does not create a justification to address
issues that are not squarely before us.
See Atkinson v. Haldane, 569 P.2d 151, 163 (Alaska 1977).
See Native Village of Stevens v. Alaska Management &
Planning, 757 P.2d 32, 34-35 (Alaska 1988).
United States v. Holliday, 70 U.S. 407, 419 (1865).
757 P.2d 32 (Alaska 1988).
See id. at 34.
See In re F.P., 843 P.2d 1214, 1215 (Alaska 1992).
See Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs
[hereinafter 1993 list], 58 Fed. Reg. 54,364, 54,368-69 (1993).
See id. at 54,364.
See id.
See id. at 54,365.
See U.S. Dep't Interior, Solic. Op. M-36,975 at 8-60
(Jan. 11, 1993).
1993 list, 58 Fed. Reg. at 54,365 (quoting the
Solicitor's opinion).
1993 list, 58 Fed. Reg. at 54,365-66 (emphases added).
25 U.S.C. 479a et seq. (West Supp. 1998).
Id. at 479a-1.
See Indian Entities Recognized and Eligible to Receive
Services from the United States Bureau of Indian Affairs, 60 Fed.
Reg. 9250, 9255 (1995); see also Indian Entities Recognized and
Eligible to Receive Services from the United States Bureau of
Indian Affairs, 61 Fed. Reg. 58,211, 58,215 (1996); Indian Entities
Recognized and Eligible to Receive Services from the United States
Bureau of Indian Affairs, 62 Fed. Reg. 55,270, 55,275 (1997);
Indian Entities Recognized and Eligible to Receive Services from
the United States Bureau of Indian Affairs, 63 Fed. Reg. 71,941,
71,945 (1998).
See P.L. 103-454, 108 Stat. 4791 (1994).
H.R. Rep. No. 103-781, at 2-3 (1994), reprinted in 1994
U.S.C.C.A.N. 3768, 2769.
Id. at 2. The legislative history to the Act reveals
that Congress recognized the dispute over the existence of Indian
country in Alaska and did not intend for the tribal recognition
list to resolve the dispute. See id. at 4-5. But Congress's
ambivalence on the Indian country issue does not undermine its
recognition of the tribal status of Alaska Native villages.
See White Mountain Apache Tribe v. Bracker, 448 U.S. 136,
143 (1980); United States v. Wheeler, 435 U.S. 313, 322-33 (1978).
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 146
(1982); see also Wheeler, 435 U.S. at 323.
435 U.S. 313 (1978).
Id. at 322-33 (citations and internal quotation marks
omitted).
Id. at 323.
See, e.g., Wheeler, 435 U.S. at 326; Montana v. United
States, 450 U.S. 544, 564 (1981). Part III.C.4 infra contains a
full discussion of the scope of retained sovereignty.
560 P.2d 31, 33 (Alaska 1977).
Id.
Id.
See, e.g., Montana, 450 U.S. at 563-67; White Mountain
Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980).
411 U.S. 145 (1973).
Id. at 148-49.
Dissent at 81-86.
450 U.S. 544 (1981).
Id. at 564 (emphasis added) (citing Mescalero, 411 U.S.
at 148).
See, e.g., Duro v. Reina, 495 U.S. 676, 685-88 (1990).
In Duro, the Court held that tribes lacked criminal jurisdiction
over nonmember Indians. See id. Shortly after the decision,
Congress provided for tribal criminal jurisdiction over nonmember
Indians. See 25 U.S.C. 1301-03 (1983 & Supp. 1998).
H.R. Rep. No. 95-1386, at 19.
See In re F.P., 843 P.2d 1214, 1219 (Alaska 1992); see
also South Dakota v. Yankton Sioux Tribe, 118 S. Ct. 789, 800
(1998) (recognizing canon of Indian law that federal laws affecting
tribal sovereignty should be "construed narrowly in favor of
retaining Indian rights"); Bryan v. Itasca County, 426 U.S. 373,
392 (1976) (stating "we must be guided by the eminently sound and
vital canon . . . that statutes passed for the benefit of dependent
Indian tribes are to be liberally construed, doubtful expressions
being resolved in favor of the Indians") (internal quotation marks,
ellipsis and citations omitted).
Alaska v. Native Village of Venetie Tribal Gov't (Venetie
II), 118 S. Ct. 948, 956 (1998).
Senator Ted Stevens, Address Before the Alaska
Legislature (Apr. 2, 1997), in Senate and House Joint Journal Supp.
No. 9 at 5, 1997 House Journal 915, quoted in Donald C. Mitchell,
Alaska v. Native Village of Venetie: Statutory Construction or
Judicial Usurpation? Why History Counts, 14 Alaska L. Rev. 353,
440 (1997).
58 Fed. Reg. 54,366 (1993).
Id.
See H.R. Rep. No. 95-1386 at 15 (alteration in original)
(quoting Wakefield v. Little Light, 347 A.2d 228, 237-38 (1975)).
See 25 U.S.C. 1903(8).
See id. at 1911 (providing for extended tribal court
jurisdiction in the field of child custody).
H.R. Rep. No. 95-1386 at 19 (emphasis added).
25 U.S.C. 3601 et seq. (West Supp. 1998).
See 25 U.S.C. 3601, 3602(3).
Id. at 3601(4), (6), (7).
See County of Yakima v. Confederated Tribes and Bands of
the Yakima Indian Nation, 502 U.S. 251, 265-66 (1992) (holding that
"when two [or more] statutes are capable of co-existence, it is the
duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective."
(alteration in original) (internal quotation marks omitted)).
United States v. Mazurie, 419 U.S. 544, 557 (1975)
(citing Worcester v. Georgia, 6 Pet. 515, 557 (1832)).
Id. (quoting United States v. Kagama, 118 U.S. 375, 381-
82 (1886)).
435 U.S. 313 (1978).
Id. at 326 (citations omitted).
450 U.S. 544 (1981).
Id. at 564 (citation omitted).
Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 170
(1982) (citing Fisher v. District Court, 424 U.S. 382 (1976)).
495 U.S. 676 (1990).
Id. at 685.
See id. at 686-89.
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978)
(citations omitted).
Duro v. Reina, 495 U.S. 676, 687 (1990) (citing Santa
Clara, 436 U.S. at 65-66; Williams v. Lee, 358 U.S. 217, 223
(1959)).
Id. at 688 (citing Brendale v. Confederated Tribes &
Bands of the Yakima Indian Nation, 492 U.S. 408 (1989)).
Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987)
(citing Fisher v. District Court, 424 U.S. 382 (1976)).
424 U.S. 382 (1976).
See id. at 383.
Id. at 389.
Id. at 390.
Id. at 387-88.
420 U.S. 425 (1975).
See id. at 427.
See id. at 426-28 & n.3.
See id.
Id. at 427 n.2.
See Alaska Native Village of Venetie Tribal Gov't
(Venetie II), 118 S. Ct. 948, 952 (1998).
See id. at 952 n.1 (noting that tribes and the federal
government have "primary jurisdiction over land that is Indian
country" but saying nothing about jurisdiction over members)
(emphasis added).
See Fisher, 424 U.S. at 386-89.
See id. at 387-89 & n.14.
The dissent also describes Solem v. Bartlett, 465 U.S.
463 (1984), as a case discussing "jurisdiction over 'lands' in
order to determine jurisdiction over tribal members." Dissent at
101. But Solem determines the existence of Indian country for the
purpose of applying an Act of Congress that vests the federal
government with exclusive jurisdiction over certain crimes
committed on Indian reservations, and thus does not address tribal
jurisdiction except in the context of that Act. See id. at 464-65
& nn.1 & 2.
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49
(1973).
508 U.S. 114 (1993).
Id. at 126 (citations omitted).
515 U.S. 450 (1995).
See id. at 465.
Id. at 464.
See id. at 464-65 & n.14.
Montana v. United States, 450 U.S. 544, 564 (1981); see
also United States v. Wheeler, 435 U.S. 313, 322-28 (1978).
Chickasaw Nation, 515 U.S. at 464.
118 S. Ct. 1700 (1998).
See id. at 1705.
See id. at 1705-08 (Stevens, J., dissenting).
See id. at 1707.
See id. at 1705.
At least one federal judge has voiced the opinion that in
enacting ANCSA, Congress intended that Native villages retain
sovereignty over members even though such sovereignty was "without
territorial reach." State of Alaska ex rel. Yukon Flats Sch. Dist.
v. Native Village of Venetie Tribal Gov't, 101 F.3d 1286, 1303 (9th
Cir. 1996) (Fernandez, J. concurring).
See 25 U.S.C. 1903(4) (defining "Indian child" under
ICWA as a child who is a tribal member or eligible for membership).
Consent of both parents may be an alternative basis for
tribal court jurisdiction in child custody cases, as federal law
supports the determination that tribes have jurisdiction over
consenting nonmembers in some situations. See Montana v. United
States, 450 U.S. 544, 565 (1981) (recognizing a tribe's power to
regulate activities of nonmembers who enter consensual
relationships with the tribe or its members). Here, Ms. John
consented to have this action decided in a Northway tribal forum.
But we need not decide at this time whether her consent is
sufficient to confer jurisdiction on the tribal court in this case,
given that we remand for determination of the children's tribal
affiliation.
See, e.g., Mescalero Apache Tribe v. Jones, 411 U.S. 145,
148-49 (1973).
See AS 22.10.020(a).
956 P.2d 1 (Mont. 1998).
See id. at 4-5.
28 U.S.C. 1738A(a).
Skillen, 956 P.2d at 18; see also In re Larch, 872 F.2d
66, 69 (4th Cir. 1989) (noting that ICWA "discloses that Congress
recognized that there can be concurrent jurisdiction in state and
tribal courts"); United States ex rel. Cobell v. Cobell, 503 F.2d
790, 795 (9th Cir. 1974) (holding that, in a custody case between
tribal members where the children reside off the reservation, the
tribe and state would share concurrent jurisdiction if the tribe's
law had not explicitly disclaimed tribal jurisdiction over
marriage, divorce, and adoption); Wells v. Wells, 451 N.W.2d 402,
405 (S.D. 1990) (recognizing concurrent state-tribal jurisdiction
over a custody action between a Native American mother and a non-
Indian father where the mother and children moved off the
reservation).
Skillen, 956 P.2d at 18.
See, e.g., Alaska Court System, Report of the Alaska
Supreme Court Advisory Committee on Fairness and Access ix (1997)
("Urban residents have far more access to justice system services
than village residents. One-fourth of Alaskans do not live within
reasonable reach of many court system services."); id. at 104-11
(noting dramatic access problems for rural Alaskans).
Calista Corp. v. Mann, 564 P.2d 53, 61 (Alaska 1977).
See, e.g., Alaska Court System, Report of the Alaska
Supreme Court Advisory Committee on Fairness and Access 49 (1997)
("Many [interviewees] believed that the courts do not understand
Alaska Native cultures and family structures . . . ."); id. at 92
(noting that 36% of Alaska Natives speak a Native language at
home).
Calista, 564 P.2d at 61.
See, e.g., Alaska Court System, Report of the Alaska
Supreme Court Advisory Committee on Fairness and Access 107-08
(1997) (recommending that state courts "greatly enhance equality in
the effective delivery of justice system services by associating or
blending [] local resources [like tribal courts] with the formal
court system" and noting that "[t]he western justice system is not
always the most appropriate model for the problems of many rural
areas").
Dissent at 62.
Dissent at 158.
Dissent at 155.
Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49
(1973).
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978)
(citations omitted); see also United States v. Quiver, 241 U.S.
602, 603-604 (1916).
Duro v. Reina, 495 U.S. 676, 685-86 (1990).
See 25 U.S.C. 1911(d).
See U.S. Const. art. IV, 1.
See Wilson v. Marchington, 127 F.3d 805, 808 (9th Cir.
1997).
See 28 U.S.C. 1738.
ICWA's full faith and credit clause provides that "[t]he
United States, every State, every territory or possession of the
United States, and every Indian tribe shall give full faith and
credit to the public acts, records, and judicial proceedings of any
Indian tribe . . . ." 25 U.S.C. 1911(d) (emphasis added). See
also Wilson, 127 F.3d at 809 (reaching the same conclusion after
comparing the language in ICWA and 1738).
See 28 U.S.C. 1738A(a); AS 25.30.120.
See 28 U.S.C. 1738A(b)(8); AS 25.30.909.
But see In re Larch, 872 F.2d 66, 68 (4th Cir. 1989)
(holding that the PKPA does apply to tribes because tribal court
judgments are entitled to full faith and credit under certain
circumstances and tribes are similar to states for purposes of
sovereignty and jurisdiction). We are unpersuaded by the reasoning
of the Larch court in light of the contrary evidence we discussed
above.
See Norman J. Singer, 2A Sutherland Statutory
Construction 47.23 (5th ed. 1992).
State courts interpreting their own versions of the UCCJA
have reached contrary conclusions regarding the meaning of the term
"state." See, e.g., Martinez v. Superior Court, 731 P.2d 1244,
1247 (Ariz. App. 1987) (holding that an Indian tribe qualifies as
a territory of the United States and thus is a state for purposes
of the UCCJA); Sengstock v. San Carlos Apache Tribe, 477 N.W.2d
310, 314 (Wis. App. 1991) (holding that the term "state" does not
include an Indian tribe).
Brown v. Babbitt Ford, Inc., 571 P.2d 689, 695 (Ariz.
App. 1977).
See Hilton v. Guyot, 159 U.S. 113, 163 (1895).
Id. at 163-64.
Wilson v. Marchington, 127 F.3d 805, 810 (9th Cir. 1997).
See, e.g., Fredericks v. Eide-Kirschmann Ford, Mercury,
Lincoln, Inc., 462 N.W.2d 164, 167-68 (N.D. 1990); Mexican v.
Circle Bear, 370 N.W.2d 737 (S.D. 1985); Custody of Sengstock v.
San Carlos Apache Tribe, 477 N.W.2d 310 (Wis. App. 1991).
See Wilson, 127 F.3d at 809.
See id. at 810 (establishing these factors as guidelines
for the federal courts after reviewing the Hilton decision, the
Restatement (Third) of Foreign Relations Law, and principles of
Indian law).
See id.
See Hilton, 159 U.S. at 202-03.
See Restatement (Third) of Foreign Relations Law, 482
cmt. b (1986).
See Wilson, 127 F.3d at 811.
Relying on the Restatement (Third) of Foreign Relations
Law, the Ninth Circuit also held that federal courts have the
discretion to deny recognition to a tribal judgment if (i) the
judgment was obtained by fraud; (ii) the judgment conflicts with
another final judgment that is entitled to recognition; (iii) the
judgment is inconsistent with the parties' contractual choice of
forum; or (iv) recognition of the judgment, or the cause of action
upon which it is based, is against the public policy of the United
States or the forum state in which recognition is sought. See
Wilson, 127 F.3d at 810. Because the facts of this case do not
implicate any of these discretionary factors, we do not decide the
extent to which our state courts could also, in their discretion,
deny recognition to tribal decisions based on them.
See Hilton, 159 U.S. at 202-03.
Wilson, 127 F.3d at 810.
See Dissent at 151-54.
The dissent's concerns about the race to the courthouse
appear to be overstated and speculative. To view application of
tribal law as merely an attempt to circumvent state laws such as
Rule 90.3's child support guidelines is essentially to argue that
tribal courts are inadequate, a conclusion soundly rejected by
federal laws such as ICWA.
See, e.g., 25 U.S.C. 1903(5).
See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32
(1978) (noting that "[a] tribe's right to define its own membership
for tribal purposes has long been recognized as central to its
existence as an independent political community").
See Restatement (Third) of Foreign Relations Law, 482
cmt. b (1986).
See, e.g., M.L.B. v. S.L.J., 117 S. Ct. 555, 560 (1996).
We recognize that Ms. John considers the tribal court's
order to have been merely temporary, and therefore believes that
the issue posed is whether state courts should be able to interfere
in pending tribal court proceedings. It is unclear to us from the
record whether Judge Titus considered her order to be temporary or
final. In the state system, superior courts regularly issue
custody orders that are deemed final and appealable even though the
orders provide that custody will be re-examined when a child
reaches school age. See, e.g., West v. Lawson, 951 P.2d 1201-02
(Alaska 1998). We therefore treat the tribal order as final for
purposes of our comity analysis.
But we note that the result in this case would be the
same regardless of whether the tribal order was temporary or final.
Although the UCCJA and the PKPA do not apply to tribal court
orders, the policy rationale underlying these acts is instructive.
Both the UCCJA and the PKPA were enacted in part to prevent
litigation of the same custody dispute in separate jurisdictions.
See 28 U.S.C. 1738A; AS 25.30.010, Historical and Statutory
Notes. Each of the statutes includes a provision instructing state
courts to refrain from exercising jurisdiction over a custody
dispute that is already being litigated in another state. See 28
U.S.C. 1738A(g); AS 25.30.050. In fact, this court has
recognized that the UCCJA's prohibition against contemporaneous
litigation in multiple forums is so strong that an Alaska court
should decline to exercise jurisdiction over a case pending in
another state's court even if it is unclear that the other state
has subject matter jurisdiction. See Rexford v. Rexford, 631 P.2d
475, 479 (Alaska 1980) (citing UCCJA Prefatory Note, 9 Uniform Laws
Annotated at 116-18). Applying the policy conclusions embodied in
these acts, we believe that superior courts should refrain from
interfering in pending tribal court proceedings absent unusual
circumstances. Once a tribal court has reached a final decision,
the comity doctrine will determine the decision's enforceability in
state court.
1 Of Alaska's estimated 1998 population of 621,400, 104,085
are Native Alaskans. See Alaska Population Overview: 1998
Estimates, Population Estimate by Race and Ethnicity, 1 (Alaska
Dep't of Labor). In addition, Department of Labor estimates
indicate that more than 30,000 Native Alaskan Indians, Eskimos, and
Aleuts resided outside of Alaska in 1990. See Alaska Population
Overview: 1997 Estimates, Population by Race and Tribal Group,
Alaska and U.S. 1980, 1990, Table 1.5, at 23 (Alaska Dep't of
Labor).
2 Population Overview: 1998 Estimates at 1, supra note 1.
3 Slip Op. at 44-45.
4 Id. at 50.
5 Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588
(codified as amended at 18 U.S.C. 1162, 25 U.S.C. 1321-26, 28
U.S.C. 1360).
6 Slip Op. at 14-17.
7 See Native Village of Nenana v. State, Dep't of Health &
Soc. Servs., 722 P.2d 219, 221 (Alaska 1986); In re F.P., 843 P.2d
1214, 1215-16 (Alaska 1992).
8 See 18 U.S.C. 1162(a) (1994).
9 See supra note 7.
10 Slip Op. at 29, 30.
11 State law has accommodated and recognized certain
traditional Native practices. For example, Native traditional,
uncontested adoptions have been recognized in state court
proceedings. See, e.g., Calista Corp. v. Mann, 564 P.2d 53, 61-62
(Alaska 1977).
12 757 P.2d 32 (Alaska 1988).
13 362 P.2d 901 (Alaska 1961), rev'd in part, 369 U.S. 45
(1962) (as to Metlakatla) and aff'd in part, Organized Village of
Kake v. Egan, 369 U.S. 60 (1962) (as to Kake and Angoon). See also
Donald C. Mitchell, Alaska v. Native Village of Venetie: Statutory
Construction or Judicial Usurpation? Why History Counts, 14 Alaska
L. Rev. 353 (1997).
14 757 P.2d at 34.
15 Id.
16 Id. at 34-41.
17 Id. at 40. The proviso stated:
PROVIDED, That groups of Indians in Alaska not
recognized prior to May 1, 1936 as bands or
tribes, but having a common bond of
occupation, or association, or residence
within a well-defined neighborhood, community
or rural district, may organize to adopt
constitutions and by-laws and to receive
charters of incorporation and federal loans
under [sections of the Indian Reorganization
Act of 1934].
Id. at 39-40.
18 Id. at 35-36 (citations omitted). As we observed in
Native Village of Stevens, since Metlakatla was reversed with
respect to Metlakatla and affirmed as to Kake and Angoon, the
statement that no tribes had been recognized in Alaska was
inaccurate because, as the Supreme Court held, the Metlakatlans had
received Congressional recognition. Id. at 36. We noted that "in
all other respects, however, the legal conclusions in Metlakatla
are accurate." Id. The Supreme Court in deciding Metlakatla made
a number of statements concerning Government-Native relations in
Alaska consistent with the views we expressed, including:
The Indians of southeastern Alaska, who
have very substantially adopted and been
adopted by the white man's civilization, were
never in the hostile and isolated position of
many tribes in other States. As early as 1886
a federal judge, holding Alaskan Indians
subject to the Thirteenth Amendment, denied
that the principle of Indian national
sovereignty enunciated in Worcester v. Georgia
6 Pet. 515, 8 L.Ed. 483, applied to them. In
re Sah Quah, 31 F. 327 (D. Alaska
[1886]). . . . Alaskan Indians are now voting
citizens, some of whom occupy prominent public
office in the state government. Metlakatlans,
the State tells us, have always paid state
taxes, in contrast to the practice described
and prescribed for other reservations . . .
and it has always been assumed that the
reservation is subject to state laws.
Metlakatla, 369 U.S. at 50-51 (emphasis added) (citations omitted).
19 757 P.2d at 40.
20 Ten reservations were created. See Mitchell, supra note
13 at 366-371.
21 See Letter from Roger Ernst, Asst. Sec'y of the Interior,
to Hon. Emanuel Celler, Chairman, Comm. on the Judiciary, House of
Representatives (Feb. 25, 1958), S. Rep. No. 58-1872, at 3 (1958),
reprinted in 1958 U.S.C.C.A.N. 3348-49 ("[T]he general
understanding had been that the many native villages in Alaska were
not Indian country, and it had been the general practice for
Territorial officers to apply Territorial law in the native
villages."); Mitchell, supra note 13 at 372-374. This is not
surprising since the "dependent Indian communities" formulation is
taken from the 1938 case of United States v. McGowan, 302 U.S. 535
(1938), in which the Court held that a small parcel in Nevada which
had been purchased by the federal government for needy Indians was
Indian country but that this designation did not mean that state
jurisdiction was retracted. The Court stated that its finding of
Indian country
does not deprive the state of Nevada of its
sovereignty over the area in question. The
federal government does not assert exclusive
jurisdiction within the colony. Enactments of
the federal government passed to protect and
guard its Indian wards only affect the
operation, within the colony, of such state
laws as conflict with the federal enactments.
Id. at 539. This conception of a state's power in "dependent
Indian communities" has changed over the years. The "state law
applies except where preempted" approach of McGowan has evolved
into a general rule expressed most recently by the United States
Supreme Court in terms of "primary jurisdiction" in Indian country
"rest[ing] with the Federal Government and the Indian tribe . . .,
and not with the States". Alaska v. Native Village of Venetie
Tribal Gov't, 118 S. Ct. 948, 952 n.1 (1998) (citation omitted).
Joseph D. Matal, A Revisionist History of Indian Country, 14
Alaska L. Rev. 283, 314-38 (1997), describes this change in detail.
22 151 F. Supp. 132 (D. Alaska 1957).
23 Id. at 133-34.
24 Id. at 136. The Assistant U. S. Attorney argued,
consistent with the dominant assumptions which I have described,
that Tyonek was not Indian country and "that Alaska natives are in
a different position as concerns the jurisdiction of criminal
offenses than the Indians in the United States proper." Id. at
134.
25 Act of August 8, 1958, Pub. L. No. 85-615, 72 Stat. 545
(codified as amended at 18 U.S.C. 1162, 25 U.S.C. 1321-26, 28
U.S.C. 1360.
26 See Addendum, infra at 165-66.
27 As Senator Ted Stevens, one of the prime architects of
ANCSA, stated in 1986, when sovereignty was an issue: "ANCSA was
and is a land settlement. It did not terminate the special
relationship between Alaska Natives from the Federal Government or
resolve any questions concerning the governmental status, if any,
of various Native groups. There's not one reference to sovereignty
in ANCSA or in the 1971 Conference report." To Amend the Alaska
Native Claims Settlement Act: Hearings on S. 2065 before the
Subcomm. on Public Lands of the Senate Comm. on Energy and Natural
Resources, 99th Cong., 2d Sess. 329 (1986).
28 See Native Village of Stevens v. Alaska Management &
Planning, 757 P.2d 32 (Alaska 1988) (discussing historical
setting).
29 See Addendum, infra at 172-75, 178-80.
30 See id. at 180.
31 944 F.2d 548 (9th Cir. 1991).
32 See 58 Fed. Reg. 54, 364-69 (1993).
33 101 F.3d 1286 (9th Cir. 1996).
34 118 S. Ct. 948 (1998).
35 Id. at 951.
36 Venetie I, 101 F.3d at 1290.
37 Id. at 1302.
38 Venetie II, 118 S. Ct. at 955-56.
39 Id. at 954 & n.5.
40 Id. at 955.
41 Id. at 955-56.
42 See Slip Op. at 17-18.
43 Id. at 34-35.
44 420 U.S. 425 (1975).
45 Id. at 427-28 & n.2.
46 424 U.S. 382 (1976).
47 Id. at 389 n.14.
48 Id.
49 Venetie II, 118 S. Ct. at 952.
50 DeCoteau, 420 U.S. at 427 n.2.
51 See, e.g., Oklahoma Tax Comm'n v. Chickasaw Nation, 515
U.S. 450, 465 (1995) (quoting Mescalero Apache Tribe v. Jones, 411
U.S. 145, 148-49 (1973)). I explain this principle at some length
in Part V of this dissent.
52 Slip Op. at 23-25, 27.
53 Id. at 28-32.
54 Id. at 29, 31-32.
55 Id. at 29-30.
56 Id. at 29-32.
57 See Organized Village of Kake v. Egan, 369 U.S. 60, 75
(1962).
58 See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49
(1978); see also the Tribal Justice Act, 25 U.S.C. 3601(4)
(1994), which states that "Indian tribes possess the inherent
authority to establish their own form of government, including
tribal justice systems."
59 See infra Dissent Part VI.
60 426 U.S. 373, 376 n.2 (1976) (quoting McClanahan v. State
Tax Comm'n, 411 U.S. 164, 170-71 (1973)).
61 515 U.S. 450, 465 (1995) (quoting Mescalero Apache Tribe
v. Jones, 411 U.S. 145, 148-49 (1973)) (emphasis added).
62 411 U.S. 145 (1973).
63 Id. at 148-49. Numerous other Supreme Court decisions
after Mescalero have continued to recognize this principle. See,
e.g., Kiowa Tribe of Oklahoma v. Manufacturing Techs., Inc., 118 S.
Ct. 1700, 1703 (1998) ("We have recognized that a State may have
authority to tax or regulate tribal activities occurring within the
State but outside Indian country. . . . To say substantive state
laws apply to off-reservation conduct, however, is not to say that
a tribe no longer enjoys immunity from suit."); White Mountain
Apache Tribe v. Bracker, 448 U.S. 136, 144 n.11 (1980) (quoting
Mescalero, 411 U.S. at 148-49); Bryan, 426 U.S. at 376 n.2 ("Of
course, this pre-emption model [favoring tribal authority] usually
yields different conclusions as to the application of state laws to
tribal Indians who have left or never inhabited federally
established reservations.") (emphasis added).
64 Mescalero Apache Tribe, 411 U.S. at 149.
65 American Indian Law Deskbook, 36-37 (Joseph P. Mazurek et
al. eds., 2d. ed., 1998) (internal citations and quotations
omitted) (emphasis added); see also Ahboah v. Housing Auth. of
Kiowa Tribe, 660 P.2d 625, 627 (Okla. 1983), which is cited by the
Deskbook in the above discussion for the following statement: "the
touchstone for allocating authority among the various governments
has been the concept of 'Indian Country.'" Deskbook at 36 n.46
(emphasis added); and see the State of Alaska's Brief in Venetie
II, 1997 WL 523883 at 18 (citations omitted) ("Indian country is
the jurisdictional touchstone for delineating federal, state, and
tribal authority over Indian-occupied lands.").
66 David H. Getches & Charles F. Wilkinson, Federal Indian
Law 331-36 (2d ed. 1986).
67 Id., note at 333.
68 See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S.
130, 137 (1982) ("The power to tax is an essential attribute of
Indian sovereignty because it is a necessary instrument of self-
government.").
69 118 S. Ct. 948, 954-56 (1998).
70 Id. at 952. Because of its importance to this discussion
I quote this footnote once again.
If the lands in question are within a
continuing "reservation," jurisdiction is in
the tribe and the Federal Government . . . .
On the other hand, if the lands are not
within a continuing reservation, jurisdiction
is in the State, except for those land parcels
which are "Indian allotments, the Indian
titles to which have not been extinguished
. . . ."
DeCoteau, 420 U.S. at 427 n.2.
71 Venetie II, 118 S. Ct. at 952 n.1.
72 Yankton Sioux Tribe, 522 U.S. 329, __; 118 S. Ct. 789,
793 (1998).
73 See the first premise of the majority's first syllogism
supra Part IV of this dissent and the majority opinion at 23-25,
27.
74 450 U.S. 544 (1981).
75 Slip Op. at 26. With respect to this general rule, I
offer, I fear repetitively, the following observations: In view of
the 1993 recognition by Secretary Deer of the tribal status of
Alaska's Native villages, see supra text accompanying note 32, the
existence of their sovereignty is not in issue. They have the same
sovereign powers as recognized tribes in other states. In cases
where tribal villages or village members occupy Indian country --
allotments or other categories of trust property -- Alaska tribes
have the same powers as tribes in other P.L. 280 states. Likewise,
to the extent that tribal villages or village members do not
occupy Indian country, Alaska tribes have the same sovereign power
as tribes which have little or no Indian country in other states.
In neither case is the existence of tribal sovereignty in
question, but in Alaska as in the other states tribal powers are
constrained by the absence of Indian country. Thus the question in
this case is not whether Northway Village Tribe exists as a
sovereign, but whether its inherent sovereign powers extend to
child custody cases not arising in Indian country.
76 Slip Op. at 26.
77 Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450,
465 (1995) (quoting Mescalero, 411 U.S. at 148-49).
78 See Slip Op. at 26-27.
79 Mescalero, 411 U.S. at 148. There is no doubt, when
analyzing both Mescalero and Montana, that the quote from Montana
that the majority uses at page 26 of its opinion references the
above-quoted language in Mescalero. Compare Montana, 450 U.S. at
564 ("[The] exercise of tribal power beyond what is necessary to
protect tribal self-government or to control internal relations is
inconsistent with the dependent status of the tribes, and so cannot
survive without express congressional delegation. Mescalero Apache
Tribe v. Jones, 411 U.S. 145, 148.") with Mescalero, 411 U.S. at
148 ("The upshot has been the repeated statements of this Court to
the effect that, even on reservations, state laws may be applied
unless such application would interfere with reservation self-
government . . . .").
80 Mescalero, 411 U.S. at 148-49 (citations omitted).
81 Slip Op. at 36.
82 McClanahan, 411 U.S. at 167 (emphasis added) (citations
omitted); see also Oklahoma Tax Comm'n v. Sac and Fox Nation, 508
U.S. 114, 124 (1993) (noting that "[i]t is true that we began our
discussion in McClanahan by emphasizing that we were not 'dealing
with Indians who have left or never inhabited reservations set
aside for their exclusive use . . . .'").
83 Organized Village of Kake, 369 U.S. at 62.
84 Id.
85 See 118 S. Ct. at 951.
86 Id. at 955-56.
87 See 420 U.S. at 427 n.2.
88 Id.; see also id. at 467 (Douglas, J., dissenting).
89 Id. at 427-28 (emphasis added).
90 Slip Op. at 39.
91 See supra Dissent Parts V.A & V.B.
92 Slip Op. at 39 & n.121.
93 Id. at n.121.
94 See El Paso Natural Gas Co. v. Neztsosie, 119 S. Ct.
1430, 1439 (1999) (noting that "[n]ow and then silence is not
pregnant" in a case in which the Court reversed the Ninth Circuit
for reasoning that tribal court could determine whether it had
jurisdiction over putative Price-Anderson actions because although
the congressionally mandated jurisdictional scheme of the Price-
Anderson Act clearly intended removal as of right to federal courts
from state courts, the Act was silent about tribal courts).
95 See, e.g., Hagen v. Utah, 510 U.S. 399 (1994) (Utah
courts properly exercised criminal jurisdiction over an Indian who
committed a crime -- the diminishment of the Uintah Indian
Reservation meant that the location where the crime was committed
was no longer Indian country); Solem v. Bartlett, 465 U.S. 463
(1984) (holding that because the defendant, who was an enrolled
member of the Cheyenne River Sioux Tribe, committed a crime on
reservation grounds, the state did not have criminal jurisdiction
over him); DeCoteau, 420 U.S. at 427-289 (holding that because
"[Congress] terminated the Lake Traverse Reservation," and because
the events giving rise to the child custody dispute arose on these
lands, "the state courts have jurisdiction [over an Indian child
custody dispute]."); Organized Village of Kake, 369 U.S. at 75 ("It
has never been doubted that States may punish crimes committed by
Indians, even reservation Indians, outside of Indian country.").
96 See, e.g., Slip Op. at 26 ("the Court has not focused on
tribal land as determinative of tribal authority"); Slip Op. at 32-
33 (tribes "derive the power to adjudicate internal domestic
matters . . . from a source of sovereignty independent of the land
they occupy"); Slip Op. at 33 ("the case law does not fairly
support the view that the existence of Indian country is an
absolute prerequisite to the existence of sovereign tribal power");
Slip Op. at 36 ("[t]he key inquiry . . . is not whether the tribe
is located in Indian country"); Slip Op. at 37 ("tribal status
itself [without Indian country] includes the power to adjudicate
internal child custody disputes").
97 Id. at 54.
98 For example, in Parker v. State, Dep't of Revenue, CSED,
960 P.2d 586, 587-88 (Alaska 1998) (citations omitted, in part), we
explained:
For the exercise of personal jurisdiction
over a nonresident defendant to be
constitutional, the defendant must have
sufficient "minimum contacts" with the forum
state so that maintaining a suit in the forum
state "does not offend 'traditional notions of
fair play and substantial justice.'"
International Shoe Co. v. Washington, 326 U.S.
310, 316 (1945) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)).
Jurisdiction is permissible over a
nonresident defendant where his contacts with
the forum are such that he could reasonably
anticipate being haled into court in the forum
state. See Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474 (1985).
The unilateral activity of
those who claim some relationship
with a nonresident defendant cannot
satisfy the requirement of contact
with the forum State. . . . [I]t is
essential in each case that there be
some act by which the defendant
purposefully avails [him]self of the
privilege of conducting activities
within the forum State. . . .
Puhlman v. Turner, 874 P.2d 291, 293 (Alaska
1994). A nonresident defendant must have fair
warning that his activities may foreseeably
subject him to jurisdiction in Alaska.
If the defendant's activities in the
forum state are "continuous and systematic,"
the forum may assert "general jurisdiction"
over the defendant, and the cause of action
need not arise out of the contacts with the
forum state. However, where the cause of
action arises out of the contacts with the
forum state, the court may have "specific
jurisdiction," even where the defendant has
only one contact with the forum state.
99 See supra note 98.
100 Slip Op. at 54.
101 Also, the benefit of convenience to Natives in remote
villages, noted by the majority at page 47 of its opinion, may
prove to be illusory. No decree of a tribal court will be self-
executing, just as no decree from another state is enforceable in
Alaska without an order from an Alaskan court. Any party who
decides not to follow a tribal decree will, therefore, always have
the opportunity to raise comity issues in a state court before the
tribal decree can be enforced. Thus, after the issues are tried in
a tribal court, if a party does not voluntarily comply with the
tribal court decree, there must be another proceeding in state
court in which the fairness of the tribal court proceeding can be
tried. This has the potential to be more time-consuming and
expensive than merely proceeding in state court to begin with.
102 It is important to note that all the cases upon which the
majority relies to support its ruling are cases that discuss the
concept of tribal inherent sovereignty, but do so in the context of
disputes that arise in Indian country. See, e.g., United States v.
Wheeler, 435 U.S. 313 (1978); Montana v. United States, 450 U.S.
544 (1981). Thus, the majority attempts to answer the question of
whether tribal power extends beyond Indian country by relying on
cases that involve the exercise of tribal power in Indian country.
But the absence of Indian country is the critical fact that
distinguishes the present case from those relied upon by the
majority.
103 Slip Op. at 32.
104 American Indian Law Deskbook, supra note 65, at 55
(emphasis added).
105 435 U.S. 313 (1978).
106 Id. at 322.
107 Id. at 328.
108 Id. at 322 n.18 (citing Fisher v. District Court, 424
U.S. 382 (1976)).
109 See Slip Op. at 23-26, 34.
110 435 U.S. at 315 n.3.
111 369 U.S. 60 (1962)
112 Id. at 75 (emphasis added); see also Hagen v. Utah, 510
U.S. 399, 421 (1994) (Utah courts properly exercised criminal
jurisdiction over an Indian who committed a crime, since the
diminishment of the Uintah Indian Reservation meant that the
location where the crime was committed was no longer Indian
country).
A case to which the Supreme Court referred in Organized
Village of Kake, 369 U.S. at 75, was Pablo v. People, 46 P.2d 636
(Colo. 1896). There a member of the Southern Ute Tribe killed
another member of the tribe. Both Indians resided on the
reservation, but the crime took place off the reservation. The
Colorado Supreme Court held that Colorado state courts, not the
tribal court, had jurisdiction.
113 465 U.S. 463 (1984).
114 Id. at 465.
115 Id.
116 See supra note 95.
117 465 U.S. at 467.
118 Slip Op. at 45-50.
119 465 U.S. at 467 (emphasis added).
120 Slip Op. at 39.
121 465 U.S. at 467 & n.8: see also discussion supra Dissent
Part V.C.
122 Slip Op. at 32.
123 465 U.S. at 468. In making this observation I do not
mean to suggest that ANCSA's abolition of reserves and reservations
affected Northway, although it clearly affected a number of other
villages which did occupy reserves or reservations. The briefs do
not contain a showing that Northway ever occupied a reserve or
reservation. Similarly, the record does not show that the land
where the parties resided was, before ANCSA, a reserve,
reservation, or other type of Indian country. A pre-ANCSA
description of reserves and reservations in Alaska does not mention
reserves or reservations at Northway or Mentasta. Federal Field
Committee for Development Planning in Alaska, Alaska Natives & the
Land 444-45 (1968).
124 Slip Op. at 34-35.
125 435 U.S. 313 (1978).
126 450 U.S. 544 (1981).
127 435 U.S. at 322 n.18; 450 U.S. at 564.
128 420 U.S. 425 (1975).
129 424 U.S. 382 (1976).
130 420 U.S. at 426-29.
131 Id. at 427.
132 Id. at 427 n.2 (emphasis added) (citations omitted).
133 Slip Op. at 38 (citing DeCoteau, 420 U.S. at 426-28 &
n.3).
134 Id. at 38-39 (citing Footnote 3 of DeCoteau).
135 Id. at 39.
136 420 U.S. at 427. At the risk of being overly simplistic,
this footnote can be compared to the following situation: If the
Court's opinion stated "The parties agree that the defendant's
confession should be suppressed if the defendant was in custody at
the time of the questioning," and was followed by a footnote citing
Miranda and other cases explaining the ramifications of custodial
interrogation, "agree" as used in the text of the opinion could not
be interpreted as a stipulation. Rather, it would reflect the
parties' settled understanding of the state of the law as
illustrated by the footnote.
137 420 U.S. at 429 n.3.
138 State and federal courts have addressed this question in
a variety of ways. The majority cites In re Marriage of Skillen,
956 P.2d 1 (Mont. 1998), and a few other decisions that hold that
tribal and state courts share concurrent jurisdiction of domestic
relations issues involving tribal members. Slip Op. at 45-46 & n.
146. These cases indicate that concurrent jurisdiction is a
possible resolution to the complex issue of which court has
jurisdiction when the dispute arises partly in Indian country and
partly outside of Indian country. But such a concurrent
jurisdictional scheme is not appropriate when the dispute arises
completely within Indian country or completely outside of Indian
country. In the former type of case, tribal court jurisdiction is
exclusive. See Fisher, 424 U.S. at 389 ("Since the adoption
proceeding is appropriately characterized as litigation arising on
the Indian reservation, the jurisdiction of the Tribal Court is
exclusive."). In the latter type of case -- which is the case we
decide today -- state court jurisdiction is exclusive. See
DeCoteau, 420 U.S. at 427 n.2. Thus, the majority's reliance on
Skillen and the other cases in footnote 146 for its decision that
Alaska now has concurrent jurisdiction is unconvincing. Skillen
and the other cases all involve a hybrid, partly inside/partly
outside of Indian country set of circumstances, but such
circumstances are decidedly not present in the present case.
This is not to say that the question posed by Footnote 3
and in addressed in Skillen will never arise in Alaska. Venetie II
held that the lands conveyed to Native corporations by ANCSA were
not Indian country. 118 U.S. at 954-55. But this does not mean
that there is no Indian country in Alaska. There are Native
allotments and other categories of trust property. Thus, the
hybrid circumstances of partly in and partly out of Indian country
raised in Footnote 3 of DeCoteau and addressed in Skillen could
arise in Alaska. In such a case, concurrent tribal and state court
jurisdiction might be appropriate. But that is not the case here.
139 420 U.S. at 427 n.2.
140 424 U.S. at 383.
141 Id.
142 Id.
143 Id. at 383-84.
144 Id. at 384.
145 Id. at 385.
146 Id. at 386, 388.
147 Id. at 389 & n.14 (emphasis added) (footnote included).
148 Slip Op. at 36.
149 Id. at 37.
150 Id. (emphasis added).
151 See Fisher, 424 U.S. at 389 & n.14.
152 Slip Op. at 37.
153 In fact, the quote from Fisher on which the majority
relies for its "dual nature of sovereignty" conclusion arose in the
context of a discussion which did not concern tribal sovereignty
and its limitations, but rather a race discrimination claim. The
Court in Fisher concluded that the "jurisdiction of the Tribal
Court is exclusive" "[s]ince the adoption proceeding is
appropriately characterized as litigation arising on the Indian
reservation." 424 U.S. at 389. With the jurisdictional issue
resolved, the Court stated that "[t]he remaining points [raised by
the Runsaboves] may be dealt with briefly." Id. at 390. The Court
then addressed the final issue of the case.
Finally, we reject the argument that
denying the Runsaboves access to the Montana
courts constitutes impermissible racial
discrimination. The exclusive jurisdiction of
the Tribal Court does not derive from the race
of the plaintiff but rather from the quasi-
sovereign status of the Northern Cheyenne
Tribe under federal law. Moreover, even if a
jurisdictional holding occasionally results in
denying an Indian plaintiff a forum to which a
non-Indian has access, such disparate
treatment of the Indian is justified because
it is intended to benefit the class of which
he is a member by furthering the congressional
policy of self-government. Morton v. Mancari,
417 U.S. 535, 551-555 (1974).
Id. at 390-91 (emphasis added).
By this point in the opinion, the Court had already
concluded that the tribal court had jurisdiction. As is clearly
evident, the analysis in the above paragraph centers on a different
issue -- the Runsaboves' racial discrimination claim. Neverthe-
less, the majority attempts to argue that this paragraph both
addresses the issue of state versus tribal court jurisdictional
authority and supports the unwarranted conclusion that tribal
jurisdictional authority based only on inherent sovereignty can
exist outside of Indian country. This reasoning by the majority is
not related to or supported by the above paragraph, which focuses
not on tribal jurisdiction but on whether such jurisdiction amounts
to impermissible racial discrimination.
154 See supra Dissent Part V.B.
155 424 U.S. at 386 (emphasis added) (citations omitted) ("In
litigation . . . arising out of conduct on an Indian reservation,
resolution of conflicts between the jurisdiction of state and
tribal courts has depended, absent a governing Act of Congress, on
'whether the state action infringed on the right of reservation
Indians to make their own laws and be ruled by them.'").
156 420 U.S. at 427-28 & n.2.
157 See Fisher, 424 U.S. at 389 and 389 n.14 (citing
DeCoteau, 420 U.S. at 428-30 and 429 n.3).
158 Fisher, correctly interpreted, also highlights an
anomalous outcome of the majority's decision -- Alaska's Northway
tribe, which is not based in Indian country, has broader
jurisdiction than the Northern Cheyenne tribe in Fisher, whose
authority is limited to the territorial confines of its
reservation. See Fisher, 424 U.S. at 389. Indeed, the essence of
Fisher, read in conjunction with DeCoteau, is that as a tribe loses
its reservation or Indian country its tribal court jurisdictional
authority is diminished. See DeCoteau, 420 U.S. at 427 n.2. But
the result in today's opinion runs counter to this principle. The
majority's decision can be read as holding that once the point is
reached where there is no Indian country, tribal jurisdiction is
freed from any territorial requirement and therefore can expand to
wherever tribal members reside. Fisher and DeCoteau contradict
this view.
159 480 U.S. 9 (1987).
160 Id. at 15; Slip Op. at 36.
161 Slip Op. at 36-38.
162 520 U.S. 438 (1997).
163 520 U.S. at 452-53 (quoting Fisher, 424 U.S. at 386)
(emphasis added).
164 Id. at 458 (quoting Montana, 450 U.S. at 566).
165 Id. (emphasis added).
166 See Slip Op. at 36.
167 Strate, 520 U.S. at 448, 453 (emphasis added).
168 Slip Op. at 39.
169 Fisher, 424 U.S. at 389 n.14.
170 See DeCoteau, 420 U.S. at 427 n.2 ("jurisdiction is in
the tribe" if the custody dispute took place "within a continuing
'reservation'" and "[o]n the other hand," "jurisdiction is in the
State" "if the lands are not within a continuing reservation.").
171 Slip Op. at 41-42.
172 508 U.S. 114 (1993).
173 515 U.S. 450 (1995).
174 508 U.S. at 123-25.
175 Id.
176 515 U.S. at 462-64.
177 Id. at 453.
178 Slip Op. at 41-42 (using the term "implied" two times in
its discussion).
179 Id. at 44.
180 The majority does the same with Kiowa Tribe of Oklahoma
v. Manufacturing Technologies, Inc., 118 S. Ct. 1700 (1998), a case
which deals with sovereign immunity, not jurisdiction. Slip Op. at
43. The two concepts are distinct. A legal obligation may exist,
but not be enforceable. The Kiowa Court addressed this distinction
at some length and reaffirmed the principle that state laws govern
conduct outside of Indian country even though a tribe enjoys
sovereign immunity for conduct outside of Indian country:
We have recognized that a State may have
authority to tax or regulate tribal activities
occurring within the State but outside Indian
country. See Mescalero Apache Tribe v. Jones,
411 U.S. 145, 148-49 (1973); see also
Organized Village of Kake v. Egan, 369 U.S.
60, 75 (1962). To say substantive state laws
apply to off-reservation conduct, however, is
not to say that a tribe no longer enjoys
immunity from suit. In [Oklahoma Tax
Commission v. Citizen Band] Potawatomi [Indian
Tribe of Oklahoma, 498 U.S. 505 (1991)], for
example, we reaffirmed that while Oklahoma may
tax cigarette sales by a Tribe's store to
nonmembers, the Tribe enjoys immunity from a
suit to collect unpaid state taxes. 498 U.S.
at 510. There is a difference between the
right to demand compliance with state laws and
the means available to enforce them.
118 S. Ct. at 1703.
181 Slip Op. at 42.
182 The Sac and Fox Nation statement is as follows:
Because all of the tribal members earning
income from the Tribe may live within Indian
country, we need not determine whether the
Tribe's right to self-governance could operate
independently of its territorial jurisdiction
to pre-empt the State's ability to tax income
earned from work performed for the Tribe
itself when the employee does not reside in
Indian country.
508 U.S. at 126. The Chickasaw Nation quote is: "Notably, the
Tribe has not asserted here, or before the Court of Appeals, that
the State's tax infringes on tribal self-governance." 515 U.S. at
464.
183 Alternatively, income earned from tribal employment in
Indian country by tribal members who reside outside of Indian
country may have a close enough nexus to Indian country to give
rise to a presumption favoring tribal jurisdiction under the
allocative principle. Another possibility is that the state power
to tax such income will be upheld, as it was in Chickasaw Nation.
184 See, e.g., Oklahoma Tax Comm'n v. Chickasaw Nation, 515
U.S. at 465; see also authorities discussed supra Dissent Part V.A.
185 Slip Op. at 2.
186 Id. at 29 (emphasis added).
187 See Atkinson v. Haldane, 569 P.2d 151, 162-63 (Alaska
1977).
188 See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49,
56 (1978) ("Congress has plenary authority to limit, modify or
eliminate" tribal powers).
189 See, e.g., Strate v. A-1 Contractors, 520 U.S. 438, 447
(1997); Duro v. Reina, 495 U.S. 676, 685 (1990); Montana v. United
States, 450 U.S. 544 (1981).
190 See, e.g., Chickasaw Nation, 515 U.S. at 465.
191 Slip Op. at 31.
192 See, e.g., Mescalero Apache Tribe, 411 U.S. at 148-49.
193 Slip Op. at 27-28 (citing In re F.P., 843 P.2d 1214, 1219
(Alaska 1992)).
194 425 U.S. 649 (1976).
195 Id. at 655 n.7.
196 43 U.S.C. 1601-29 (1994).
197 Slip Op. at 28.
198 43 U.S.C. 1601(f).
199 Id. 1601(b).
200 Slip Op. at 29.
201 118 S. Ct. 948 (1998).
202 See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S.
130, 137 (1982).
203 118 S. Ct. at 952-56.
204 Id. at 952.
205 25 U.S.C. 479(a)-479(a-1) (1994).
206 58 Fed. Reg. 54,366 (1993) (emphasis added).
207 See Fisher, 424 U.S. at 389.
208 H.R. Rep. No. 103-781, at 5 (1994) (emphasis added),
reprinted in U.S.C.C.A.N. 3771.
209 25 U.S.C. 3601-3631 (1994).
210 Id. 3611.
211 Id. 3612, 3613, 3614, 3621.
212 Id. 3601(6) ("Congress and the Federal courts have
repeatedly recognized tribal justice systems as the appropriate
forums for the adjudication of disputes affecting personal and
property rights[.]").
213 This is not to say that tribal courts in Alaska are left
without any jurisdiction. They have delegated jurisdiction, as in
cases to which ICWA applies, 25 U.S.C. 1901-63, and inherent
jurisdiction to decide internal matters pertaining to tribal
membership and organization. See 25 U.S.C. 3601(4) ("Indian
tribes possess the inherent authority to establish their own form
of government, including tribal justice systems."). Furthermore,
tribal courts can and do perform other important justice-related
functions by deferral and consent. For example, state law
enforcement authorities may defer prosecution of juvenile offenses
with the consent of the juvenile so that the case may be handled by
a tribal court. Directory of Dispute Resolution in Alaska Outside
Federal and State Courts, Alaska Judicial Council (March 1999) at
11-12. For an extensive list of the services performed by tribal
courts, see id. at 29-102.
214 Slip Op. at 13.
215 Id. at 31.
216 Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143, 146
(Alaska 1984).
217 398 U.S. 375, 392 (1970).
218 Id. (citation omitted).
219 25 U.S.C. 1903(1).
220 Slip Op. at 11-14.
221 783 P.2d 1159 (Alaska 1989).
222 Id. at 1161-62.
223 Id. at 1160 (emphasis added); see also In re T.N.F., 781
P.2d 973, 977 (Alaska 1989) ("We have serious policy reservations
concerning the creation of judicial exceptions to the plain
language of ICWA . . . .").
224 See generally, Santa Clara Pueblo v. Martinez, 436 U.S.
49, 56 (1978).
225 Slip Op. at 31.
226 25 U.S.C. 1918(a) (1994).
227 25 C.F.R. 13.11-12 (1999).
228 Id. at 13.14(b).
229 See 25 U.S.C. 1911(b) (1994), which states:
In any State court proceeding for the foster
care placement of, or termination of parental
rights to, an Indian child not domiciled or
residing within the reservation of the Indian
child's tribe, the court, in the absence of
good cause to the contrary, shall transfer
such proceeding to the jurisdiction of the
tribe, absent objection by either parent, upon
the petition of either parent or the Indian
custodian or the Indian child's tribe:
Provided, That such transfer shall be subject
to declination by the tribal court of such
tribe.
230 Id.
231 44 Fed. Reg. 67,591 (1979).
232 Id.
233 See Slip Op. at 33-36.
234 450 U.S. 544 (1981).
235 Id. at 564 (first emphasis in original, second and third
emphasis added) (quoting United States v. Wheeler, 435 U.S. 313
(1978)).
236 495 U.S. 676 (1990).
237 Id. at 685 (emphasis in original).
238 Strate, 520 U.S. at 445-46; cf. Reina, 495 U.S. at 679
(holding that "the retained sovereignty of the tribe as a political
and social organization to govern its own affairs does not include
the authority to impose criminal sanctions" on a nonmember Indian
who committed murder on the tribe's reservation).
239 Slip Op. at 23-27, 35-36.
240 Id. at 44-45.
241 Id.
242 Id.
243 Id. at 44.
244 Montana, 450 U.S. at 564 (quoting United States v.
Wheeler, 435 U.S. 313 (1978)).
245 Slip Op. at 45 n.141.
246 Id. (citing Montana, 450 U.S. at 565).
247 See Strate, 520 U.S. at 446-47.
248 Id. These "two exceptions" allow "in certain
circumstances, even where Congress has not expressly authorized it,
tribal civil jurisdiction [to] encompass nonmembers." Id. at 446.
249 Montana, 450 U.S. at 565-66 (internal citations omitted)
(emphasis added); Strate, 520 U.S. at 446-47; Slip Op. at 44-45
n.140.
250 Slip Op. at 45 n.141.
251 This conclusion is also consistent with the Supreme
Court's general view of the inherent authority tribal courts have
over consenting nonmembers. See Merrion v. Jicarilla Apache Tribe,
455 U.S. 130, 147 (1982) ("Whatever place consent may have in
contractual matters and in the creation of democratic governments,
it has little if any role in measuring the validity of an exercise
of legitimate sovereign authority. . . . Indian sovereignty is not
conditioned on the assent of a nonmember."). Congress, through its
plenary powers over Indian tribes, can always grant tribal courts
the power to hear cases involving consenting nonmembers even
outside of Indian country. Indeed, that is what Congress did in
allowing "transfer jurisdiction" in ICWA. See 28 U.S.C. 1911(b)
(1994). But unless and until Congress speaks, we are bound by
Montana's "general rule" that "'the inherent powers of an Indian
tribe' -- those powers a tribe enjoys apart from express provision
by treaty or statute -- 'do not extend to the activities of
nonmembers of the tribe.'" Strate, 520 U.S. at 445-46 (quoting
Montana, 450 U.S. at 565).
252 See Perry v. Newkirk, 871 P.2d 1150, 1154 (Alaska 1994)
(citations omitted) (noting that one definition of subject matter
jurisdiction is "the power to render a judgment over that class of
cases within which a particular one falls").
253 See Slip Op. at 44-45 (emphasis added) ("Because the
tribe only has subject matter jurisdiction over the internal
disputes of tribal members, it has the authority to determine
custody only of children who are members or eligible for
membership.").
254 See Wanamaker v. Scott, 788 P.2d 712, 713-14 n.2 (Alaska
1990) (because "a court which does not have subject matter
jurisdiction is without power to decide a case, this issue cannot
be waived, and can be raised at any point during the litigation").
255 H.R. Rep. No. 95-1386, at 35-38 (1978) (emphasis added),
reprinted in 1978 U.S.C.C.A.N. 7558, 7560-61.
256 Slip Op. at 47-48.
257 495 U.S. 676 (1990).
258 Id. at 683.
259 Id. at 698 (emphasis added). The Court in DeCoteau made
a similar statement. Once the Court determined that the tribe's
reservation had been terminated, and therefore the child custody
case belonged in state court because it arose outside of Indian
country, the DeCoteau Court declared that it would not entertain
policy arguments on why removing tribal jurisdiction over custody
matters would be harmful to the tribe:
Until the Court of Appeals altered the
status quo, South Dakota had exercised
jurisdiction over the unallotted land of the
former reservation for some 80 years. Counsel
for the tribal members stated at oral argument
that many of the Indians have resented state
authority and suffered under it. Counsel for
the state denied this and argued that an end
to state jurisdiction would be calamitous for
all the residents of the area, Indian and non-
Indian alike. These competing pleas are not
for us to adjudge, for our task [determining
whether the former reservation had been
terminated and therefore was not Indian
country] is a narrow one.
420 U.S. at 449 (emphasis added).
We have similarly stated that, especially in areas where
we lack institutional competence and authority, we should not make
decisions based on policy rationales. See Industrial Indem. Co. v.
State, 669 P.2d 561, 563 (Alaska 1983) ("[C]ourts must not intrude
into realms of policy exceeding their institutional competence.").
260 See Strate, 520 U.S. at 446 n.5.
261 Slip Op. at 50.
262 Id. at 30, 31, 35-36.
263 As the state has recently said: "[T]he long-standing
jurisdictional regime and settled understanding in Alaska [is that]
state laws apply to all Alaskans, without regard to the particular
community in which they live." See Brief for Petitioner, State of
Alaska v. Native Village of Venetie, 1997 WL 523883 at 93. See
generally the "Historical Setting" discussion supra Dissent Part
II.
264 436 U.S. 49 (1978).
265 Slip Op. at 35-36 (quoting Santa Clara Pueblo, 436 U.S.
at 55-56 (citations omitted)).
266 Santa Clara Pueblo, 436 U.S. at 52.
267 Mescalero Apache Tribe, 411 U.S. at 148-49 (string
citations omitted) (emphasis added).
268 See supra Dissent Part II.
269 Slip Op. at 32.
270 465 U.S. at 468 (Court analyzing congressional act that,
like ANCSA, "uncoupled reservation status [of the land] from Indian
ownership.").
271 420 U.S. at 426-28.
272 Id. at 427-28.
273 See discussion supra Dissent Part V.A.
274 369 U.S. 60 (1962).
275 Id. at 62.
276 Id.
277 Id. at 61.
278 28 U.S.C. 1360(c) (1994).
279 See, e.g., Johnson v. Johnson, 564 P.2d 71 (Alaska 1977).
280 We have described the tender years presumption as
follows: "[A] mother of young children will generally be given
preference for custody if the other factors are evenly balanced."
Id. at 73. We have expressly rejected this presumption. Id. at
75.
281 Turner v. Pannick, 540 P.2d 1051 (Alaska 1975).
282 See Alaska R. Civ. P. 90.3.
283 S. Rep. No. 699 (1953), reprinted in 1953 U.S.C.C.A.N.
2409, 2411-12.
284 Id. at 2411.
285 Id. at 2412.
286 In an adversarial system each party will attempt to use
the law to his or her best advantage. If two sets of laws cover
the same transaction or dispute, it is rational for each party to
act in a way designed to ensure that the law more favorable to the
party's position governs the case.
The majority assures us that "[a] tribe's inherent
jurisdiction does not give tribal courts priority, or presumptive
authority, in disputes involving tribal members." Slip Op. at 45.
But the majority understates the breadth of its own holding. The
holding of today's decision is that if a parent (Native or non-
Native) of a child who is a tribal member or eligible for tribal
membership, see id. at 44-45, files a custody dispute in tribal
court before state proceedings are initiated, the tribal court has
jurisdiction over the case. State courts can only get involved
after the tribal court's ruling through comity proceedings. In
such circumstances, then, today's decision clearly is a grant of
priority and presumptive authority to tribal courts.
287 304 U.S. 64 (1938). One Supreme Court Justice has called
Erie "one of the most important cases at law in American legal
history." Jack H. Friedenthal, Mary Kay Kane, & Arthur R. Miller,
Civil Procedure, 4.2 at 195 & n.3 (2d ed. 1993) (quoting Justice
Black).
288 41 U.S. (16 Pet.) 1 (1842).
289 Swift, 41 U.S. at 13.
290 Erie, 304 U.S. at 74-75.
291 Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945).
292 Slip Op. at 44-45.
293 See supra note 1.
294 It should also be noted that many of the more than 30,000
ethnic Native Alaskans who do not live in Alaska, see supra note 1,
may also be subject to tribal court jurisdiction in Alaska given
the geographically limitless "membership sovereignty" theory
recognized by the majority, and the unexplored parameters of
personal jurisdiction in the context of village tribal court
jurisdiction. See Slip Op. at 32-33, 54.
295 See Directory of Dispute Resolution In Alaska Outside
Federal and State Courts, Alaska Judicial Council, March 1999, at
29-102. Most villages perform mediation and quasi-judicial roles
through their village council. The formation of courts as such is
a recent development, but as of this writing twenty-three villages
have done so. Id. at 11. A significant number of villages
exercise no judicial or quasi-judicial functions. Id. at 12.
296 See supra note 32.
297 Joseph D. Matal, A Revisionist History of Indian Country,
14 Alaska L. Rev. 283, 349 n.517. Matal notes that there are many
villages with fewer than fifty people and that four villages have
populations of fewer than ten people. Id.
298 455 U.S. 130, 172 (1982) (Stevens, J., dissenting). The
Indian Civil Rights Act imposes some, but not all, of the
protections of the Bill of Rights on tribes. See 25 U.S.C. 1302
(1994). But the Act is seemingly enforceable only by a writ of
habeas corpus, which means that in cases not involving a detention
of the person recognizable under the writ the Act may be
unenforceable. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 59
(1978).
299 Jicarilla Apache Tribe, 455 U.S. at 137.
300 Montana, 450 U.S. at 564.
301 Slip Op. at 32-33.
302 Report of the Alaska Supreme Court Advisory Comm. on
Fairness and Access, app. G (1997).
303 Alaska Population Overview: 1998 Estimates, Population
Estimate by Race and Ethnicity, 1 (Alaska Dep't of Labor).
304 447 U.S. 134, 181 (1980) (Rehnquist, J., concurring in
part).
305 Alaska Const. art. IV, 1.
1 722 P.2d 219 (Alaska 1986), cert. denied, 479 U.S. 1008
(1986).
2 Slip Op. at 17.
3 Id. at 17 n.44.
4 Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588
(codified as amended at 18 U.S.C. 1162, 25 U.S.C. 1321-26, 28
U.S.C. 1360).
5 Act of August 8, 1958, Pub. L. 85-615, 72 Stat. 545
(codified as amended at 18 U.S.C. 1162, 25 U.S.C. 1321-26, 28
U.S.C. 1360).
6 Act of November 25, 1970, Pub. L. 91-523, 84 Stat. 1358
(codified at 18 U.S.C. 1162, 25 U.S.C. 1321-26, 28 U.S.C.
1360).
7 The relevant text of P.L. 280 as enacted in 1953 is set
out below with subsequent amendments. The 1958 amendments are
redlined while the 1970 amendments are crossed out and capitalized.
All amendments are followed by the date of the amendment.
1162. State jurisdiction over offenses committed
by or against Indians in the Indian country
(a) Each of the States or Territories [8/8/58]
listed in the following table shall have jurisdiction
over offenses committed by or against Indians in the
areas of Indian country listed opposite the name of the
State or Territory [8/8/58] to the same extent that such
State or Territory [8/8/58] has jurisdiction over
offenses committed elsewhere within the State or
Territory [8/8/58], and the criminal laws of such State
or Territory [8/8/58] shall have the same force and
effect within such Indian country as they have elsewhere
within the State or Territory [8/8/58]:
State or Territory [8/8/58] of Indian country affected
Alaska All Indian country within
the Territory [8/8/58]
[11/25/70]
ALASKA ALL INDIAN COUNTRY WITHIN
THE STATE, EXCEPT THAT ON
ANNETTE ISLANDS, THE
METLAKATLA INDIAN
COMMUNITY MAY EXERCISE
JURISDICTION OVER
OFFENSES COMMITTED BY
INDIANS IN THE SAME
MANNER IN WHICH SUCH
JURISDICTION MAY BE
EXERCISED BY INDIAN
TRIBES IN INDIAN COUNTRY
OVER WHICH STATE
JURISDICTION HAS NOT BEEN
EXTENDED. [11/25/70]
California All Indian country within
the State.
Minnesota All Indian country within
the State, except the
Red Lake Reservation.
Nebraska All Indian country within
the State.
Oregon All Indian country within
the State, except the
Warm Springs Reservation.
Wisconsin All Indian country within
the State, except the
Menominee Reservation.
(b) Nothing in this section shall authorize the
alienation, encumbrance, or taxation of any real or
personal property, including water rights, belonging to
any Indian or any Indian tribe, band, or community that
is held in trust by the United States or is subject to a
restriction against alienation imposed by the United
States; or shall authorize regulation of the use of such
property in a manner inconsistent with any Federal
treaty, agreement, or statute or with any regulation made
pursuant thereto; or shall deprive any Indian or any
Indian tribe, band, or community of any right, privilege,
or immunity afforded under Federal treaty, agreement, or
statute with respect to hunting, trapping, or fishing or
the control, licensing, or regulation thereof.
(c) The provisions of sections 1152 and 1153 of
this chapter shall not be applicable within the areas of
Indian country listed in subsection (a) of this section
AS AREAS OVER WHICH THE SEVERAL STATES HAVE EXCLUSIVE
JURISDICTION. [11/25/70]
8 Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588.
9 Id.
10 Id.
11 Id.
12 Id.
13 Id.
14 S. Rep. No. 83-699 (1953), reprinted in 1953 U.S.C.C.A.N.
2409, 2411-12. The report begins with a lengthy explanation of the
committee's general aims reflected in numerous pieces of
legislation during the session: "withdrawal of Federal
responsibility for Indian affairs wherever practicable, and . . .
termination of the subjection of Indians to Federal laws applicable
to Indians as such." Id. at 2409.
15 Act of August 8, 1958, Pub. L. 85-615, 72 Stat. 545.
16 S. Rep. No. 85-1872 (1958), reprinted in 1958
U.S.C.C.A.N. 3347, 3348.
17 Act of November 25, 1970, Pub. L. 91-523, 84 Stat. 1358.
18 Id. (emphasis added).
19 See infra Dissent Addendum Part II.A.
20 H.R. Rep. No. 91-1545 (1970), reprinted in 1970
U.S.C.C.A.N. 4783, 4783.
21 439 U.S. 463 (1979).
22 Id. at 488-89 n.32.
23 Id. at 475.
24 Id. at 498 (emphasis added).
25 369 U.S. 60 (1962).
26 Id. at 74 (emphasis added).
27 465 U.S. 463 (1984).
28 Id. at 465 n.2 (emphasis added).
29 426 U.S. 373 (1976).
30 480 U.S. 202 (1987).
31 Bryan, 426 U.S. at 383.
32 Cabazon Band of Mission Indians, 480 U.S. at 208 (citing
Bryan, 426 U.S. at 385, 388-90).
33 722 P.2d 219 (Alaska 1986), cert. denied, 479 U.S. 1008
(1986).
34 Id. at 221.
35 Id. at 220.
36 Id. at 221 (citing 25 U.S.C. 1918(a)).
37 25 U.S.C. 1918(a).
38 Nenana, 722 P.2d at 221.
39 Id.
40 744 P.2d 1173, 1174 (Alaska 1987).
41 843 P.2d 1214, 1215 (Alaska 1992).
42 Act of November 25, 1970, Pub. L. 91-523, 84 Stat. 1358.
43 See infra Dissent Addendum Part II.B.
44 Act of November 25, 1970, Pub. L. 91-523, 84 Stat. 1358.
45 Id.
46 Id.
47 Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588.
48 Id.
49 H.R. Rep. No. 91-1545 (1970), reprinted in 1970
U.S.C.C.A.N. 4783, 4786 (emphasis added).
50 Act of November 25, 1970, Pub. L. 91-523, 84 Stat. 1358
(emphasis added).
51 Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588.
52 Act of November 25, 1970, Pub. L. 91-523, 84 Stat 1358
(emphasis added).
53 Bryan, 426 U.S. at 376 n.2 (quoting McClanahan v.
Arizona State Tax Comm'n, 411 U.S. 164, 170-71 (1973)).
54 374 U.S. 321 (1963).
55 118 S. Ct. 789 (1998).
56 Id. at 803 (quoting Philadelphia Nat'l Bank, 374 U.S. at
348-49).
57 Bryan 426 U.S. at 386 (emphasis added) (citation
omitted).
58 See Totemoff v. State, 905 P.2d 954, 967-68 (Alaska
1995).
59 See Howe v. Smith, 452 U.S. 473, 485 (1981) ("the
[agency's] interpretation of the statute merits greater than normal
weight because it was the [agency] that drafted the legislation and
steered it through Congress with little debate"). See also
Frontier Airlines, Inc. v. Civil Aeronautics Bd., 621 F.2d 369, 372
(10th Cir. 1980) (holding that the construction of a statute by an
agency charged with its administration is entitled to substantial
deference by courts, especially where the administrative practice
at stake involves the contemporaneous construction of the statute
by those charged with the responsibility of setting its machinery
in motion); 2B Norman J. Singer, Sutherland Statutory Construction
49.04 at 11 (5th ed. 1992) ("[L]egislative history in the form of
information as to how draftsmen of a provision understood it and
that their meaning was communicated to the Congress which enacted
it has been held to be entitled to greater weight than subsequent
administrative interpretation.") (citation omitted).
60 See General Elec. Co. v. Gilbert, 429 U.S. 125, 142-46
(1976) (declining to defer to agency interpretation which
contradicted previous, longstanding interpretation and following
earlier interpretation); Totemoff, 905 P.2d at 967-68.
61 Op. Solic. Dep't Interior, No. M-36241 (Sept. 22, 1954),
reprinted in II U.S. Dep't of Interior, Opinions of the Solicitor
of the Department of the Interior Relating to Indian Affairs, 1917-
1974, 1648, at 1648 (1979) ("Criminal jurisdiction conferred upon
a state by 18 U.S.C. 1162 is exclusive except as against the United
States.").
62 Id. at 1650 n.4 (first and third emphasis added); Op.
Solic. Dep't Interior No. M-36907 (November 14, 1978), 85 I.D. 433,
435 (1978) (quoting June 4, 1954 letter from Assistant Secretary of
the Interior Lewis to Mr. Morgan E. Pryse, Area Director, Bureau of
Indian Affairs, Minneapolis, Minnesota (June 4, 1954)).
63 See Zemel v. Rusk, 381 U.S. 1, 11 (1965) (in "some
circumstances, Congress' failure to repeal or revise in the face of
[an] administrative interpretation has been held to constitute
persuasive evidence that that interpretation is the one intended by
Congress."). See also 2B Norman J. Singer, Sutherland Statutory
Construction 49.05 at 19 (5th ed. 1992) ("If the legislature has
amended portions of the statute, but left intact the portion sought
to be construed, the legislature has declared an intent to adopt
the construction placed on the statute by the administrative
agency.") (citation omitted). Cf. Bob Jones Univ. v. United States,
461 U.S. 574, 600-01 (1983) ("In view of its prolonged and acute
awareness of so important an issue, Congress' failure to act on the
bills proposed on this subject provides added support for
concluding that Congress acquiesced in the [agency's] rulings
. . . ."); Casperson v. Alaska Teachers' Retirement Bd., 664 P.2d
583, 585 (Alaska 1983) ("we must assume that the legislature was
conscious of what it was doing when it amended the statute in 1970,
but left [a related statute] unchanged.").
64 S. Rep. No. 85-1872 (1958), reprinted in 1958
U.S.C.C.A.N. 3347, 3348 (emphasis added).
65 Webster's Third New Int'l Dictionary 2426-27 (1966).
66 See supra Dissent Addendum II.A.
67 H.R. Rep. No. 91-1545 (1970), reprinted in 1970
U.S.C.C.A.N. 4783, 4784 (emphasis added).
68 Id. at 4786 (emphasis added).
69 See Op. Solic. Dep't Interior, No. M-36907 (Nov. 14,
1978), 85 I.D. 433, 434-37 (1978).
70 Native Village of Venetie, I.R.A. Council v. Alaska, 944
F.2d 548, 561-62 (9th Cir. 1991).
71 American Indian Lawyer Training Program, Inc., Indian
Tribes as Sovereign Governments 11 (1988).
72 Id. at 14.
73 Id.
74 See General Elec., 429 U.S. at 142-46; Totemoff, 905 P.2d
at 967-68.
75 Act of November 25, 1970, Pub. L. 91-523, 84 Stat. 1358.
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