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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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