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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
