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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In The Matter of: C.R.H. (08/31/2001) sp-5458

In The Matter of: C.R.H. (08/31/2001) sp-5458

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
	

					)	Supreme Court No. S-9677
IN THE MATTER OF:			)
					)	Superior Court No.
	C.R.H.				)	3AN-99-378 CP
					)							
					)	O P I N I O N
					)
	  ______________________________)	[No. 5458 - August 31, 2001]




Appeal from the Superior Court of the State of 
Alaska, Third Judicial District, Anchorage,
	Eric T. Sanders, Judge.


Appearances:  Chris Provost and Harold N. 
Brown, Tanana Chiefs Conference, Inc., 
Fairbanks, for the Native Village of Nikolai. 
 Donna J. Goldsmith, Assistant Attorney 
General, and Bruce M. Botelho, Attorney 
General, Juneau, for the State of Alaska.  
Lois J. Schiffer, Assistant Attorney General, 
Washington, D.C., Ethan G. Shenkman, Attorney, 
Department of Justice, Washington, D.C., 
Judith Rabinowitz, Attorney, Department of 
Justice, San Francisco, California, John D. 
Leshy, Solicitor, and Tricia Tingle, Office of 
the Solicitor, Department of the Interior, 
Washington, D.C., for Amicus Curiae the United 
States. 


Before:  Fabe, Chief Justice, Matthews, 
Eastaugh, Bryner, and Carpeneti, Justices.  


FABE, Chief Justice.

I.	INTRODUCTION

	Under subsection 1911(b) of the Indian Child Welfare Act[Fn. 1]  
(ICWA), state courts must transfer certain child custody cases to 
tribal courts unless either the parents or tribe object, or there 
exists good cause to decline transfer.  Following our decisions in 
Native Village of Nenana v. State, Department of Health & Social 
Services and subsequent cases, however, Alaska Native Villages have 
been precluded from accepting jurisdiction over ICWA cases.[Fn. 2]  
Neither Nenana nor later cases affirming it included analysis of 
the language and structure of ICWA's transfer provisions in section 
1911.  Because we conclude that section 1911 authorizes transfer 
jurisdiction for federally recognized tribes in Alaska, we hold 
that tribes may accept transfer jurisdiction under this section of 
ICWA.  We overrule Nenana and subsequent decisions affirming its 
holding to the extent that those cases are inconsistent with 
today's decision.

II.	FACTS AND PROCEEDINGS

	C.R.H. was born in Anchorage on June 27, 1999.  Her 
mother is a member of the Native Village of Nikolai, and her father 
is a member of the Native Village of Chickaloon; C.R.H. is eligible 
for membership in Nikolai.  The State, Department of Health and 
Social Services (DHSS) assumed emergency custody of C.R.H. on June 
30, 1999, and she has not been in her parents' custody since that 
time.  She currently lives with maternal relatives in Nikolai.  The 
parties to this appeal agree that this should be C.R.H.'s permanent 
home, but disagree about the appropriate legal mechanism for 
finalizing the placement.
	DHSS filed for determination that C.R.H. was a child in 
need of aid and for C.R.H.'s temporary placement on June 30, 1999. 
The superior court held a number of probable cause hearings 
beginning on July 2, 1999.  After the first probable cause hearing, 
the superior court found temporary probable cause and ordered DHSS 
to take temporary custody pending a second hearing.  At the second 
hearing, on July 7, the Chickaloon Village Traditional Council 
moved to intervene as the child's tribe under ICWA and requested 
that the case be transferred to the tribal court.  At the third 
hearing, on July 12, the parties stipulated to temporary legal 
custody with DHSS, Division of Family and Youth Services (DFYS), 
pending legal resolution of the intervention and jurisdiction 
questions in this case.  The parties also later stipulated that 
C.R.H. was a child in need of aid.
	On August 3, 1999, the Native Village of Nikolai, 
represented by the Tanana Chiefs Conference, filed its first motion 
to intervene.  During the hearing, a Tanana Chiefs attorney 
informed the superior court that the Villages of Chickaloon and 
Nikolai had agreed that Nikolai would act as C.R.H.'s tribe for 
ICWA purposes; Chickaloon requested that its own motions be held in 
abeyance in favor of Nikolai's.  The court granted Nikolai's motion 
to intervene under ICWA and its motion for determination that 
Nikolai was C.R.H.'s ICWA tribe.
	Nikolai then moved to transfer jurisdiction to the 
Nikolai tribal court.  The State argued in opposition that under 
the Nenana line of cases, Public Law 280[Fn. 3]  (P.L. 280) barred Nikolai 
from asserting jurisdiction over an ICWA case unless Nikolai had 
reassumed jurisdiction to adjudicate ICWA cases under 25 U.S.C. ' 
1918.  The State's brief stated that "[a]lthough the Department 
wishes this were not the law in this state, it is constrained, as 
is [the superior] court, to follow [the Nenana line of cases] until 
the Alaska Supreme Court overrules these decisions."  The superior 
court denied Nikolai's transfer motion.  It directed entry of final 
judgment for purposes of appeal under Alaska Civil Rule 54(b), 
while retaining jurisdiction over the rest of the case.  Nikolai 
brings this appeal, which is limited to the tribal court transfer 
issue.

III.	STANDARD OF REVIEW

	The parties do not dispute any legally relevant facts. 
The questions presented are solely questions of law, to which we 
apply our independent judgment.[Fn. 4]

IV.	DISCUSSION

	Federally recognized tribes, including the Native Village 
of Nikolai,[Fn. 5]  retain their sovereign powers unless Congress 
specifically withdraws their authority.[Fn. 6]

	Under P.L. 280, Congress extended Alaska state courts' 
jurisdiction to "all Indian country" within Alaska.[Fn. 7]   This court 
interpreted P.L. 280 in Native Village of Nenana, holding that 
through that law Congress effectively divested tribal jurisdiction 
and granted the state "exclusive jurisdiction over matters 
involving the custody of Indian children."[Fn. 8]   State jurisdiction 
remained exclusive, we held, unless a tribe governed by P.L. 280 
successfully petitioned to reassume custody under ICWA section 
1918.[Fn. 9]

	Nikolai urges us to reconsider Nenana's interpretation of 
P.L. 280, and to hold that the Alaska Native tribes affected by 
P.L. 280 retain jurisdiction concurrent with that of the state.  We 
need not reach this issue, however, because the jurisdiction 
claimed by Nikolai exists regardless of P.L. 280: Subsection 
1911(b) tribal transfer jurisdiction over ICWA custody cases was 
expressly approved by Congress in enacting ICWA.  The language and 
structure of section 1911 reflect congressional intent that all 
tribes, regardless of their P.L. 280 status, be able to accept 
transfer jurisdiction of ICWA cases from state courts.  We 
therefore hold that Nikolai may assume jurisdiction over this case 
under ICWA's subsection 1911(b) transfer provision.  To the extent 
that Nenana,[Fn. 10]  F.P.,[Fn. 11]  and K.E.[Fn. 12]  are inconsistent with this 
decision, those cases are overruled.[Fn. 13]
	ICWA section 1911 reads in critical part:
	(a)	Exclusive jurisdiction

	An Indian tribe shall have jurisdiction 
	exclusive as to any State over any child 
	custody proceeding involving an Indian child 
	who resides or is domiciled within the 
	reservation of such tribe, except where such 
	jurisdiction is otherwise vested in the State 
	by existing Federal law.  Where an Indian 
	child is a ward of a tribal court, the Indian 
	tribe shall retain exclusive jurisdiction, 
	notwithstanding the residence or domicile of 
	the child.

	(b)	Transfer of proceedings; declination by 
	tribal court

	In any State court proceeding for the foster 
	care placement of, or termination of parental 
	rights to, an Indian child not domiciled or 
	residing within the reservation of the Indian 
	child's tribe, the court, in the absence of 
	good cause to the contrary, shall transfer 
	such proceeding to the jurisdiction of the 
	tribe, absent objection by either parent, upon 
	the petition of either parent or the Indian 
	custodian or the Indian child's tribe: 
	Provided, That such transfer shall be subject 
	to declination by the tribal court of such 
	tribe.[Fn. 14]

	As the above language makes clear, Congress intended P.L. 
280 to affect tribes' exclusive jurisdiction under subsection 
1911(a), but did not intend P.L. 280 to affect transfer 
jurisdiction under subsection 1911(b).  Subsection 1911(a) grants 
tribes exclusive jurisdiction over cases involving children who 
reside on reservations "except where such jurisdiction is otherwise 
vested in the State by existing Federal law" such as P.L. 280.[Fn. 15]
With this qualifying language, Congress recognized P.L. 280 as a 
limitation on exclusive tribal jurisdiction.  By contrast, in 
subsection 1911(b), Congress did not articulate a P.L. 280 
exception to tribal transfer jurisdiction.  Rather, it provided 
that "in any State court proceeding . . . the court, in the absence 
of good cause to the contrary, shall transfer such proceeding to 
the jurisdiction of the tribe."[Fn. 16]   Subsection 1911(b) therefore 
authorizes transfer to tribal courts regardless of whether or how 
P.L. 280 otherwise affects the tribes' jurisdiction.[Fn. 17]
	ICWA subsection 1911(b) creates three checks on tribal 
transfer jurisdiction:  State courts should retain jurisdiction if 
either parent objects to the tribe hearing the case, if the tribe 
declines jurisdiction, or if the court finds good cause to deny 
transfer.  Congress intended that state courts apply the good cause 
exception using a "modified doctrine of forum non conveniens . . . 
to insure that the rights of the child as an Indian, the Indian 
parents or custodian, and the tribe are fully protected."[Fn. 18] The 
Bureau of Indian Affairs provides further guidelines regarding the 
good cause exception.[Fn. 19] These guidelines are not binding, and we 
have departed from them in the past.[Fn. 20] Under the guidelines, state 
courts should deny transfer if the tribe does not have a court as 
defined by the Act.[Fn. 21] The guidelines also specify the circumstances 
in which a state may wish to deny transfer.  These include cases in 
which state proceedings are well advanced before tribes petition 
for transfer; cases in which a teenaged child who is the subject of 
the proceedings objects to the transfer; cases in which necessary 
evidence could not be presented to the tribal court without undue 
hardship to parties or witnesses; and cases in which a child over 
five years of age has had little contact with the tribe and the 
child's parents are unavailable.[Fn. 22] The guidelines place the burden 
of establishing good cause to deny transfer jurisdiction on the 
party opposing the transfer.[Fn. 23] The good cause exception -- like the 
comity analysis discussed in John v. Baker -- "is not an invitation 
for our courts to deny recognition to tribal [courts] based on 
paternalistic notions of proper procedure. . . .  [S]uperior 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."[Fn. 24]
	Because the superior court concluded that Nikolai could 
not claim subsection 1911(b) transfer jurisdiction, it did not 
carry out an analysis of good cause.  On remand, the superior court 
should inquire whether good cause exists to deny transfer to 
Nikolai.  If no such cause exists, then transfer to the tribal 
court is appropriate under ICWA subsection 1911(b).

V.	CONCLUSION

	We conclude that ICWA subsection 1911(b) authorizes 
transfer of jurisdiction to tribal courts regardless of P.L. 280.  
To the extent that Nenana,[Fn. 25] F.P.,[Fn. 26] and K.E.[Fn. 27] are 
inconsistent with this conclusion, those cases are overruled.  We 
REMAND this case for transfer to the Nikolai tribal court unless the 
superior court finds good cause to deny transfer.


1. 	25 U.S.C.  1901-1963 (2000).

2. 	722 P.2d 219 (Alaska 1986); In re F.P., 843 P.2d 1214 
	(Alaska 1992); In re K.E., 744 P.2d 1173 (Alaska 1987).

3. 	Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588, 589 
	(codified as amended at 18 U.S.C.  1162, 25 U.S.C.  1321-26, 28 
	U.S.C.  1360).

4. 	See Temple v. Denali Princess Lodge, 21 P.3d 813, 815 
	(Alaska 2001). 

5. 	We follow the U.S. Congress's determination that Alaska 
	Native tribes are sovereign powers under federal law.  See John v. 
	Baker, 982 P.2d 738, 749 (Alaska 1999), cert. denied, 528 U.S. 1182 
	(2000).  In John, we affirmed the Native Village of Northway's 
	sovereignty based on the village's inclusion in the Department of 
	the Interior's 1993 tribe list and the 1994 Tribe List Act.  See 
	id. at 750.  Like Northway Village, Nikolai Village is on the 
	Department of the Interior's 1993 tribe list, see Indian Entities 
	Recognized and Eligible to Receive Services from the United States 
	Bureau of Indian Affairs, 58 Fed. Reg. 54,364, 54,369 (1993), and 
	on every tribe list since issued by that Department.  See Indian 
	Entities Recognized and Eligible to Receive Services from the 
	United States Bureau of Indian Affairs, 60 Fed. Reg. 9250, 9255 
	(1995); Indian Entities Recognized and Eligible to Receive Services 
	from the United States Bureau of Indian Affairs, 61 Fed. Reg. 
	58,211, 58,215 (1996); Indian Entities Recognized and Eligible to 
	Receive Services from the United States Bureau of Indian Affairs, 
	62 Fed. Reg. 55,270, 55,275 (1997); Indian Entities Recognized and 
	Eligible to Receive Services from the United States Bureau of 
	Indian Affairs, 63 Fed. Reg. 71,941, 71,945 (1998); Indian Entities 
	Recognized and Eligible to Receive Services from the United States 
	Bureau of Indian Affairs, 65 Fed. Reg. 13,298, 13,302 (2000).  In 
	the Tribe List Act, Congress recognizes as an Indian tribe "any 
	Indian or Alaska Native tribe, band, nation, pueblo, village or 
	community that the Secretary of the Interior acknowledges to exist 
	as an Indian tribe."  25 U.S.C.  479a(2) (2000).

6. 	See John, 982 P.2d at 751; see also Iowa Mutual Ins. Co. 
	v. LaPlante, 480 U.S. 9, 18 (1987); Merrion v. Jicarilla Apache 
	Tribe, 455 U.S. 130, 149 (1982).

7. 	28 U.S.C.  1360(a) provides:

	Each of the States listed in the following 
	table shall have jurisdiction over civil 
	causes of action between Indians or to which 
	Indians are parties which arise in the areas 
	of Indian country listed opposite the name of 
	the State to the same extent that such State 
	has jurisdiction over other civil causes of 
	action, and those civil laws of such State 
	that are of general application to private 
	persons or private property shall have the 
	same force and effect within such Indian 
	country as they have elsewhere within the 
	State:
	
 
	State of	Indian country affected 

	Alaska		All Indian country within the 
			State.

8. 	722 P.2d 219, 221 (Alaska 1986).

9. 	Id. at 221.  In John, we noted that P.L. 280 does not 
	apply to those Alaska Native tribes that do not occupy Indian 
	country.  982 P.2d at 748.

10. 	Native Village of Nenana v. State, Dep't of Health & Soc. 
	Servs., 722 P.2d 219 (Alaska 1986).

11. 	In re F.P., 843 P.2d 1214 (Alaska 1992).

12. 	In re K.E., 744 P.2d 1173 (Alaska 1987).

13. 	Nenana based its analysis primarily on the language of 
	ICWA section 1918.  See 722 P.2d at 221-22.  As the discussion 
	above makes clear, we now find that section 1911 and not section 
	1918 controls this legal question.

14. 	25 U.S.C.  1911.  The remainder of  1911 provides:

	(c)	State court proceedings; intervention

	In any State court proceeding for the foster 
	care placement of, or termination of parental 
	rights to, an Indian child, the Indian 
	custodian of the child and the Indian child's 
	tribe shall have a right to intervene at any 
	point in the proceeding.
	
	(d)	Full faith and credit to public acts, 
	records, and judicial proceedings of Indian 
	tribes

	The United States, every State, every 
	territory or possession of the United States, 
	and every Indian tribe shall give full faith 
	and credit to the public acts, records, and 
	judicial proceedings of any Indian tribe 
	applicable to Indian child custody proceedings 
	to the same extent that such entities give 
	full faith and credit to the public acts, 
	records, and judicial proceedings of any other 
	entity.

15. 	25 U.S.C.  1911(a) (emphasis added).

16. 	25 U.S.C.  1911(b) (emphasis added).  As the United 
	States Supreme Court has noted, ICWA subsection 1911(b) "creates 
	concurrent but presumptively tribal jurisdiction" over proceedings 
	involving children not domiciled on reservations.  Mississippi Band 
	of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989) (emphasis 
	added).  By mandating that state courts "shall," absent good cause 
	to deny transfer or objection by a parent or the tribe, transfer 
	jurisdiction to tribal courts, Congress created a strong 
	presumption in favor of transfer.  See 25 U.S.C. ' 1911(b).

17. 	We find the language of section 1911 to be clear. 
	However, if it were ambiguous, the result reached above would still 
	be mandated by the constructive canon that "[c]ourts must resolve 
	ambiguities in statutes affecting the rights of Native Americans in 
	favor of Native Americans."  John v. Baker, 982 P.2d 738, 752 
	(Alaska 1999), cert. denied, 528 U.S. 1182 (2000).

18. 	H.R. Rep. No. 95-1386, at 8 (1978), reprinted in 1978 
	U.S.C.C.A.N. 7530, 7544.  For discussion of forum non conveniens 
	factors, including private interests of the litigants, public 
	interests of the forum state, and the existence of an adequate 
	alternative forum for dispute resolution, see Piper Aircraft Co. v. 
	Reyno, 454 U.S. 235, 254 n.22 (1981), and In re Union Carbide Corp. 
	Gas Plant Disaster at Bhopal, India in Dec., 1984, 809 F.2d 195 (2d 
	Cir. 1987).

19. 	Bureau of Indian Affairs, U.S. Dep't of the Interior, 
	Guidelines for State Courts, Child Custody Proceedings, 44 Fed. 
	Reg. 67,584 (1979).

20. 	See C.L. v. P.C.S., 17 P.3d 769, 776 (Alaska 2001); In re 
	Adoption of F.H., 851 P.2d 1361, 1364 (Alaska 1993).

21. 	See 44 Fed. Reg. at 67,591.

22. 	The Bureau of Indian Affairs guidelines provide, in part:
	(a)	Good cause not to transfer the proceeding 
	exists if the Indian child's tribe does not 
	have a tribal court as defined by the Act to 
	which the case can be transferred.
	
	(b)	Good cause not to transfer the proceeding 
	may exist if any of the following 
	circumstances exists:
	
		(i)	The proceeding was at an advanced 
		stage when the petition to transfer was 
		received and the petitioner did not file 
		the petition promptly after receiving 
		notice of the hearing.

		(ii) The Indian child is over twelve 
		years of age and objects to the transfer. 

		(iii) The evidence necessary to decide 
		the case could not be adequately 
		presented in the tribal court without 
		undue hardship to the parties or the 
		witnesses. 

		(iv)	The parents of a child over five 
		years of age are not available and the 
		child has had little or no contact with 
		the child's tribe or members of the 
		child's tribe.

	44 Fed. Reg. at 67,591.

23. 	"The burden of establishing good cause to the contrary 
	shall be on the party opposing the transfer."  44 Fed. Reg. at 
	67,591.

24. 	John, 982 P.2d at 763 (internal citation omitted); see 
	also BIA guidelines, 44 Fed. Reg. at 67,591 ("Socio-economic 
	conditions and the perceived adequacy of tribal or Bureau of Indian 
	Affairs social services or judicial systems may not be considered 
	in a determination that good cause exists.").
	
	We note that state courts are split on the question 
	whether good cause analysis for denying section 1911 transfer 
	jurisdiction should include substantive considerations of the best 
	interests of the child.  Because the facts of this case do not 
	require us to decide this issue, we do not address it.  Compare In 
	re Armell, 550 N.E.2d 1060, 1065 (Ill. App. 1990) (best interests 
	of child are not relevant to subsection 1911(b) good cause 
	determination), and Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 
	170 (Tex. App. 1995) (same), with In re Appeal in Maricopa County 
	Juvenile Action No. JS-8287, 828 P.2d 1245, 1251 (Ariz. App. 1991) 
	(best interests of child are relevant to subsection 1911(b) good 
	cause determination), and In re Robert T., 246 Cal. Rptr. 168, 174-
	75 (Cal. App. 1988) (same).

25. 	Native Village of Nenana v. State, Dep't of Health & Soc. 
	Servs., 722 P.2d 219 (Alaska 1986).

26. 	In re F.P., 843 P.2d 1214 (Alaska 1992).

27. 	In re K.E., 744 P.2d 1173 (Alaska 1987).

	-4-	5458