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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John v Baker (08/31/2001) sp-5460

John v Baker (08/31/2001) sp-5460

     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-9891
             Appellant,       )
                              )    Superior Court No.
     v.                       )    4FA-95-3103 CI
                              )
JOHN BAKER,                   )    O P I N I O N
                              )
             Appellee.        )    [No. 5460 - August 31, 2001]
______________________________)




          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. 
Deborah Niedermeyer, Contract Attorney, J. John Franich, Assistant
Public Advocate, Fairbanks, and Brant McGee, Public Advocate,
Anchorage, for Appellee.


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


          FABE, Chief Justice.
          MATTHEWS, Justice, concurring.


I.   INTRODUCTION
          In a previous appeal of this case, John v. Baker I, we
held that the Northway Tribal Court had jurisdiction to adjudicate
child custody disputes involving tribal members. [Fn. 1]  We
remanded to the superior court for determination whether the tribal
court's 1995 custody decision in this case should be recognized by
the superior court under the comity doctrine. [Fn. 2]  On remand,
the superior court determined that, because much of the record of
the tribal proceedings had been lost, "the Court will never know
what actually transpired [in the Northway proceeding]." Despite
the dearth of information about those proceedings, however, the
superior court concluded that the tribal court had not afforded due
process to the father, John Baker.  The superior court therefore
denied comity to the tribal court's order.  Because we conclude
that no sound comity analysis could be carried out without using
available procedures for reconstructing the record of the tribal
proceedings, we reverse the superior court's decision.  However,
because the tribal court order at issue in this case has expired by
its own terms, we do not require reconstruction of the record, but
instead remand with instructions that the superior court refer this
case to the Northway Tribal Court for new proceedings.
II.  FACTS AND PROCEEDINGS
          This case concerns the custody of two children: John M.
Baker II and Emmanuel Kenneth Baker.  The children's mother, Anita
John, [Fn. 3] is a member of the Native Village of Mentasta.  Their
father, John Baker, is a member of the Native Village of Northway. 
In 1994 Ms. John filed a petition for custody of the children in
the Mentasta Tribal Court.  Both parties later filed petitions for
custody with the Northway Tribal Court, and that court eventually
assumed jurisdiction over the case. 
          Before Northway held its custody hearing, Northway Judge
Lorraine Titus called Mentasta First Chief (and Ms. John's adoptive
sister) Nora David to discuss how the case should be handled.  The
two tribal officials apparently agreed that Northway should hear
the case, but that the two tribes should cooperate.  The exact
nature of the planned cooperation between the tribes is unclear.
          In 1995 the Northway court held one or more evidentiary
hearings and then ordered the parents to share custody of the
children on a month-by-month basis.  The tape recording of the
proceedings has been lost, and many significant details are
disputed: it is unclear how many hearings took place, who was
present, who acted as a judge on the Northway court, and which
witnesses spoke.  The parties seem to agree, however, that all of
the Mentasta members who came to the hearings were relatives of Ms.
John.  They also apparently agree with the superior court's
conclusion that the Northway proceedings were "conducted more like
a 'mediation' than an adjudication." But they disagree,
significantly, about what role Ms. John's Mentasta relatives played
in the hearing and about whether Mr. Baker's father was permitted
to testify.
          The Northway court ordered the parents to share custody
on a month-by-month basis until John II entered kindergarten, at
which point the court would meet again to decide permanent
placement.  Dissatisfied with the shared custody order, Mr. Baker
filed a new custody petition with the Alaska superior court. 
Although Ms. John moved to dismiss based on the prior tribal
adjudication, the superior court found that Northway had lacked
jurisdiction to hear the case. [Fn. 4]  It therefore denied Ms.
John's motion to dismiss and eventually awarded primary custody to
Mr. Baker. [Fn. 5]
          On appeal, we ruled in John v. Baker I that state and
tribal courts had concurrent jurisdiction over the case so long as
the children were members or eligible for membership in Northway.
[Fn. 6] We remanded, instructing the superior court to make factual
findings and apply the comity doctrine in deciding whether to defer
to Northway's decision in the case. [Fn. 7] 
          On remand, Superior Court Judge Ralph R. Beistline held
that, because of due process failings in the Northway proceedings,
comity was not due to the tribal court decision.  The superior
court's ruling depended on a factual finding that Mentasta Council
members who were relatives of Ms. John exercised undue influence
over the Northway Tribal Court.  However, as the superior court
recognized, the available record of Northway's proceedings was so
sparse that "the Court will never know what actually transpired
that day."
          The superior court additionally found that the Baker
children were not Northway members, but that they were eligible for
membership.  It therefore held that Northway had subject matter
jurisdiction.  And it found that Northway has an appeals process,
but that the tribal court is not required to grant appeals.  The
superior court concluded that because Mr. Baker never sought an
appeal through the Northway court, the issue was moot.  Finally,
the superior court found that Mr. Baker had received proper and
timely notice of all relevant proceedings.
          After the superior court issued its decision, Ms. John
moved for reconsideration and submitted three new affidavits
challenging the superior court's factual conclusion that Mentasta
members had influenced the Northway court.  Two of these affidavits
were from judges of the Northway Tribal Court, who stated that Ms.
John's Mentasta relatives "were not present during our
deliberations, they did not participate as decision-makers, and
they were not regarded or treated as Northway Tribal Court judges."
The superior court declined to reconsider its decision.  It did not
directly address the new affidavits, or indicate whether it had
considered them in reaching its conclusion. 
          Ms. John now again appeals to this court.    
III. STANDARD OF REVIEW
          This case involves both questions of fact and questions
of law.  We review factual findings for clear error, and will
uphold the superior court's findings unless we are "left with a
definite and firm conviction on the entire record that a mistake
has been made, even though there may be evidence to support the
finding."[Fn. 8]  In reviewing a superior court's comity
determination -- which will often entail analysis similar to that
used in jurisdiction [Fn. 9] or due process [Fn. 10] determinations
-- we apply our independent judgment. [Fn. 11] 
IV.  DISCUSSION
          In John v. Baker I, we held that the Northway Tribal
Court may assert jurisdiction that is concurrent with the state's
over this case, and that "the comity doctrine provides the proper
framework for deciding when state courts should recognize tribal
court decisions."[Fn. 12]  We noted several possible circumstances
in which a state court might appropriately deny comity to tribal
decisions. [Fn. 13]  On remand, the superior court considered two
questions which are germane to comity analysis in this case:
whether Northway had subject matter jurisdiction [Fn. 14] and
whether Northway provided the parties with due process of law.  The
superior court correctly resolved the first question, but was
unable adequately to consider the second question because of the
underdeveloped record in this case.
     A.   The Burden of Proof Rests on the Party Challenging
          Comity.

          As an initial matter, the parties dispute who should bear
the burden of proof.  We have not previously addressed the
allocation of the burden of proof in comity cases. [Fn. 15] 
However, both the public policy articulated in John v. Baker I and
case law from other states support assigning the burden of proof to
the party challenging a tribal judgment's validity.
          In John v. Baker I, we noted that "as a general rule, our
courts should respect tribal court decisions under the comity
doctrine."[Fn. 16] Following this policy, it should be presumed
that tribal courts' decisions are sound and deserving of comity
unless the challenging party can show otherwise.  Such presumption
against judicial error is common between cooperating courts of
concurrent jurisdiction -- in cases arising under the Parental
Kidnapping Prevention Act [Fn. 17] and the Uniform Child Custody
Jurisdiction Act, [Fn. 18] courts have placed the burden of proof
upon the party challenging another state's judgment. [Fn. 19]  And
in considering challenges to tribal judgments, state courts have
upheld "the general rule . . . that the burden of proof falls upon
one attacking the validity of a foreign judgment."[Fn. 20]  We
agree that a party challenging the extension of comity to a tribal
judgment bears the burden of proof. [Fn. 21]
     B.   Because the Children Are Eligible for Membership in
Northway, the Northway Court Had Subject Matter Jurisdiction.

          Following our decision in John v. Baker I, the state
court should deny comity if the tribal court lacked personal or
subject matter jurisdiction over the case it adjudicated. [Fn. 22] 
Mr. Baker raises a number of arguments why Northway lacked
jurisdiction in this case. [Fn. 23]  The superior court correctly
rejected all of these claims.
          In John v. Baker I, we held that Alaska Native tribes as
a general matter retain sovereignty and jurisdiction over "custody
disputes involving tribal members"[Fn. 24] -- but that a tribe
only has subject matter jurisdiction over a particular dispute if
the children "are members or eligible for membership"in the tribe.
[Fn. 25] On remand, we instructed the superior court to determine
the children's membership status by applying tribal law. [Fn. 26] 
The superior court did so and concluded that the children were
eligible for membership.  Mr. Baker now claims that the superior
court had no authority to interpret and apply tribal law.  But it
is well within the power of state courts to apply the law of
another state, nation, or tribe where appropriate -- we expressly
instructed the superior court to do so in this case. [Fn. 27]  And
although Mr. Baker claims that state courts cannot decide this
issue because Northway's membership law is "unsettled,"it could be
claimed that any legal issue that gives rise to litigation is an
"unsettled"point of law.  It is nevertheless frequently the duty
of courts to interpret law from other jurisdictions and resolve
those "unsettled"points. [Fn. 28]
          Because the superior court correctly determined that
Northway had subject matter jurisdiction over this case, it
properly concluded that there exists no jurisdiction-based reason
to deny comity to Northway's order.       
     C.   The Superior Court Could Not, in the Absence of an
Adequate Record, Determine Whether the Northway Court Granted the
Parties Due Process.

          Almost no record of the Northway proceedings was before
the  superior court when that court conducted its comity review.
The original tape recording of the tribal court's evidentiary
hearing could not be located, and "other crucial documents and/or
transcripts that would better enable the Court to determine exactly
what transpired"were missing as well -- although it is unclear
whether the parties actually sought discovery of all of these
documents.  The superior court attempted to piece together the
history of the Northway proceedings, but was understandably
frustrated by the scant record, which "consist[ed] largely of the
pleadings filed by the parties and nothing more." As a result,
legitimate disputes persist regarding even such basic questions as
"whether there were one or two hearings and . . . who may have
attended these hearings." Because of the incomplete record, the
superior court concluded, "the Court will never know what actually
transpired. . . .  Instead, the Court is left with conflicting
stories and bits and pieces of evidence scattered throughout the
depositions and affidavits."
          Mr. Baker argues that the Northway court's loss of the
case record in itself amounts to a violation of his due process
rights.  We reject this claim.  However, we conclude that the
absence of the record makes it impossible to resolve another due
process claim raised by Mr. Baker: the claim that Ms. John's
relatives played an adjudicatory role in the Northway proceedings.
          1.   The tribal court's loss of part of the case record
is not in itself a due process violation.

          The tribal court's loss of the hearing record does not
amount to a violation of due process.  Northway's Judicial Code
requires the court to maintain records of proceedings.  Neither
party alleges that Northway failed to do so, only that documents
and the recording of the hearing were subsequently misplaced. [Fn.
29]  Administrative error of this sort is not unique to tribal
courts: the Alaska Rules of Appellate Procedure anticipate the same
problems arising in state court, and provide guidelines for the
court to recreate missing records. [Fn. 30]  In this case, the
Northway court had no chance to pursue internal remedies for the
loss of the Baker record because Mr. Baker never sought appellate
review in the tribal court.  Given that a trial court's
misplacement of documents would not, in state court, compromise the
validity of the entire proceeding, we cannot find that an identical
error by a tribal court, which the tribal court has not had
opportunity to remedy, violates due process or constitutes an
independent ground for refusing comity to that court's decision.
[Fn. 31]
          However, absence of a suitably developed record may in
many cases -- and does in this case -- make it impossible for the
Alaska state court to carry out comity analysis.  Particularly when
a challenger alleges due process failings, his or her challenge may
be properly assessable only by a court with access to the record of
tribal proceedings.  Tribal courts have authority to maintain
records in the manner they deem appropriate; they are under no
obligation to duplicate state record-keeping practices.  But unless
a tribal court maintains some record suitable for review, its
decision may be vulnerable to attack in state court and its wider
effect may be jeopardized.
          2.   Allegations that Ms. John's relatives served an
adjudicatory function in the Northway proceedings are not
reviewable in the absence of a record.

          In John v. Baker I, we noted that a state court might
appropriately deny comity to a tribal court decision if the tribal
proceedings did not afford the parties due process. [Fn. 32]  We
explained that full and fair adjudication by an impartial tribunal
is a requirement for comity, but that tribal courts need not follow
the same procedures as Anglo-American courts:
               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.[ [Fn. 33]] 

          In this case, Mr. Baker's primary due process claim is an
allegation that the Northway Tribal Court was dominated or
excessively influenced by Ms. John's relatives from Mentasta. [Fn.
34]  He bases the claim on two incidents: the pre-hearing telephone
contact between Northway and Mentasta representatives, and the
evidentiary hearing itself.  In both incidents, Northway's action
in cooperating with another tribe and involving that tribe's
members in the proceedings could have been sound judicial practice
deserving of respect and comity in state court.  However, Mr. Baker
alleges that the two tribes did more than cooperate: according to
him, Northway permitted Ms. John's relatives, two of whom were
actually caregivers to the children in question, to act as
adjudicators of the custody dispute.  In the absence of a full
record, it is impossible to draw a sound legal conclusion about the
role played by Ms. John's Mentasta relatives in the Northway
proceedings.
               a.   Pre-hearing telephone contact between Northway
and Mentasta

          Mr. Baker argues that the pre-hearing telephone contact
between Northway's Judge Lorraine Titus and Mentasta's First Chief
(and Ms. John's adoptive sister) Nora David "compromise[d] the
impartiality of the tribunal so as to deprive him of due process."
The superior court did not rule that this contact, in itself,
amounted to a violation of due process. [Fn. 35]  However, because
we are urged to affirm denial of comity on these alternate grounds,
we will briefly discuss this issue. [Fn. 36]
          Pre-hearing communication between two courts of
potentially concurrent jurisdiction, or two tribes with shared
interest in a custody case, does not constitute a due process
violation.  Communication and coordination between courts promotes
the efficient administration of justice; it is a practice
encouraged and at times mandated for state courts in analogous
circumstances. [Fn. 37]   Official contact between Northway and
Mentasta for purposes of discussing jurisdiction was, in itself,
wholly appropriate.
          Mr. Baker alleges, however, that this particular call
raises special due process concerns because David was Ms. John's
relative and a named "person involved"in Mr. Baker's custody
petition. [Fn. 38]  He further implies that during this call First
Chief David influenced Judge Titus's determination of how "the
custody decision should be made"and what "the nature and
composition of the tribunal which would hear the case"would be. 
These claims suggest that the agreement reached by the two
officials during the phone call concerned more than the appropriate
issues of cooperation between tribal governments.  Rather, Mr.
Baker seems to allege that Judge Titus allowed First Chief David to
shape the substantive outcome of the case, or that the two
officials agreed that relatives of Ms. John from Mentasta should
have some adjudicatory role in determining that outcome.  As will
be discussed in the next section, due process concerns could be
raised if the record supported Mr. Baker's allegation that Ms.
John's close relatives, some of whom were also caregivers for the
children whose custody was at issue, actually acted in an
adjudicatory capacity in this case.  The telephone contact between
Judge Titus and First Chief David is relevant to due process only
to the extent that it may support that allegation.  Aside from this
possibility, however, the telephonic communication and cooperation
between the tribes was entirely appropriate and in keeping with due
process.
               b.   Mentasta's role in the evidentiary hearing
          The cooperation between Northway and Mentasta in
conducting the custody hearing could have widely varying legal
significance, depending on factual variables undisclosed in the
record before us.
          The superior court noted that Northway's hearing was
"conducted more like a 'mediation' than an adjudication,"but
correctly concluded that this variation from the adversarial
process followed by state courts was an appropriate exercise of
tribal authority and not a violation of due process.  To the extent
that Mr. Baker complains that Northway violated due process simply
by following a mediation-like mode of dispute resolution, we reject
this argument.  It is well within the legitimate authority of the
tribal court to maintain traditional dispute-resolution practices
that differ from those observed in state court.  Where, as here,
tradition or justice demanded the involvement of members of another
tribe, it was also appropriate to give those individuals a role in
the proceedings.
          Nevertheless, Mr. Baker's allegation of judicial bias
raises potential due process concerns because the Mentasta members
were related to Ms. John and in some cases caregivers to the
children, and because it is unclear exactly what role they played
in the Northway court.  Mr. Baker alleges at some points in his
brief that Ms. John's relatives actually acted as members of the
panel deciding the custody dispute; he further alleges that the
panel denied his own father the opportunity to speak as a witness. 
If the record supported this alleged disparate treatment of the two
parties and their families, and in particular if it were shown that
Ms. John's relatives actually acted in an adjudicatory role during
the Northway proceedings, this could be a case in which "the
judiciary was dominated by the opposing litigant"in violation of
Mr. Baker's due process rights. [Fn. 39]  But if the Mentasta
members were merely influential and persuasive in the manner of any
compelling interested witness in a child custody case, or in the
manner of an intervening tribe in an Indian Child Welfare Act case,
then their participation was appropriate and gives rise to no due
process concerns.  Nor would a joint panel comprised of
adjudicators from two tribes, such as that alleged here, give rise
to due process concerns unless one party were shown to have
dominated the panel. Indeed, for small tribes, joint or intertribal
panels may be a reasonable adjudicative model; particularly in the
appellate arena, such panels may allow tribes to avoid actual or
apparent conflicts of interest of the sort averred by Mr. Baker in
this case.
     D.   The Superior Court Should Have Sought a Fuller Record of
the Northway Proceedings.

          The lack of a record of the Northway court proceedings
makes it impossible to know whether those proceedings comported
with due process.  In order for a court to assess the decision of
a court of concurrent jurisdiction under the comity doctrine, it is
necessary as a threshold matter that the analyzing court know what
happened in the disputed case.  Here, given the lack of a record,
the superior court simply did not have enough evidence to
accurately assess the Northway proceedings. 
          The superior court in this case had several appropriate
options for reconstructing the Northway record; two general models
are suggested by the Alaska Rules of Appellate Procedure.  By
working to develop the record further, the court could have avoided
the near-impossible task of drawing reasonable factual conclusions
from the minimal evidence before it.
          The Alaska Rules of Appellate Procedure provide three
models for courts to follow in correcting record deficiencies. [Fn.
40]  Under Rule 210(i), [Fn. 41] which governs appeals from the
superior court, and Rule 604(a)(2), [Fn. 42] which governs appeals
from the district court, parties may by stipulation supplement
incomplete records and resolve any "differences . . . as to whether
the record on appeal truly discloses what occurred in the [lower]
court."[Fn. 43]  Rule 604(a)(2) makes the appeals court
responsible for addressing and resolving disagreements about the
record, [Fn. 44] while Rule 210(i) gives that responsibility to the
trial court. [Fn. 45]  A third model for correcting record
deficiencies is Rule 210(b)(8), which sets forth obligations of the
parties appealing cases for which no tape or transcript is
available. [Fn. 46]  Following this rule, the parties may submit
statements of the evidence of proceedings from the best available
means -- including their own recollections -- to the trial court
for settlement and approval by that court; approved statements are
then transmitted to the appellate court for use in lieu of a
transcript.  Although these rules would only apply by analogy to
the proceedings on remand, they suggest that the superior court had
at least three reasonable options for fulfilling its responsibility
to obtain an adequate record from which to draw conclusions.  The
superior court could itself have taken a more active role in
developing the record -- an approach which among other things would
have included careful consideration of the Northway judges'
affidavits.  Or, it could have concluded that the tribal court was
better positioned to reconstruct its own proceedings, and therefore
requested assistance from Northway. [Fn. 47]  Either approach would
have permitted the court to develop a more substantive factual
foundation for the resolution of Mr. Baker's due process claims. 
     E.   Referral Is the Appropriate Remedy in this Case.
          Under ordinary circumstances, justice would require that
the record of the Northway proceedings be reconstructed in order to
facilitate informed comity analysis.  However, it is not reasonable
or necessary to require reconstruction of the record in this case,
because the issue resolved in the 1995 Northway proceedings has
become moot with the passage of time.  Northway's 1995 order, by
its own terms, resolved the custody dispute only temporarily: the
tribal court ordered that once John Baker II started school, the
parties should participate in a new hearing to determine permanent
placement.  John II turned ten on July 31, 2001, and has presumably
been enrolled in school for some time.  We will not ask the tribe,
or require the state, to expend further judicial resources
reconstructing the record for a custody order that has become
irrelevant.
          At most, Mr. Baker's due process claims allege case-
specific errors that could occur in almost any judicial proceeding. 
Mr. Baker has not alleged or proved any ongoing institutional
deficiency; nor has he established that the Northway Tribal Court
would be incapable of fairly adjudicating future issues raised in
this case or in others.  Accordingly, even if true, Mr. Baker's
allegations would not overcome the presumption that the Northway
Tribal Court's actions will generally deserve comity.  And since
Mr. Baker chose to initiate proceedings in the tribal court, that
court should properly be regarded as the preferred forum for
resolving the parties' custody dispute in the first instance.  We
therefore determine that, on the unusual facts of this case, the
proper resolution is not to redevelop the record of the Northway
proceedings.  Rather, we conclude that the superior court should
refer the case back to the tribal court with a request that that
court consider and decide custody arrangements appropriate to the
current circumstances.  This resolution is more suitable given the
passage of time and changing circumstances in this case.  If Mr.
Baker again feels that the Northway proceedings do not warrant
state court recognition under the comity doctrine, he is of course
free to file a new challenge upon the conclusion of the Northway
Tribal Court's proceedings based on the new record developed by
that court.
V.   CONCLUSION
          Because the legal claims raised in this case cannot be
resolved without a better-developed record, we REVERSE the legal
conclusions of the superior court.  However, redevelopment of the
record of the original child custody proceedings before the
Northway court does not serve the current needs of the parties.  We
therefore REMAND for referral to the Northway Tribal Court to
conduct further child custody proceedings.MATTHEWS, Justice, concurring.
          Joined by Justice Compton, I dissented in the first
decision in this case. [Fn. 1]  My view was and is that tribes,
absent an act of Congress, do not have jurisdiction to decide child
custody cases that do not arise in Indian Country.  But the
majority opinion took the opposite view.  It may be that other
courts, or this court in future cases, will decide that this
important jurisdictional point was erroneously decided.  But the
majority opinion determined the law that governs the parties in
this court.  I consider myself bound by that determination under
the doctrine of the law of the case. [Fn. 2]  Proceeding thus, I
agree with today's opinion. 


                            FOOTNOTES


Footnote 1:

     John v. Baker, 982 P.2d 738, 765 (Alaska 1999).


Footnote 2:

     See id.


Footnote 3:

     Anita John was the mother's name at the time this case was
originally filed; she has apparently since legally changed her
name.  For purposes of consistency with our previous opinions,
however, this opinion will continue to refer to her as Anita John.


Footnote 4:

     See John, 982 P.2d at 743-44.


Footnote 5:

     See id.


Footnote 6:

     See id. at 764.


Footnote 7:

     See id. at 764-65.


Footnote 8:

     Brosnan v. Brosnan, 817 P.2d 478, 480 (Alaska 1991).


Footnote 9:

     See B.J. v. J.D., 950 P.2d 113, 115 (Alaska 1997).


Footnote 10:

     See Naquin v. Naquin, 974 P.2d 383, 385 (Alaska 1999).


Footnote 11:

     Accord Gesinger v. Gesinger, 531 N.W.2d 17, 19 (S.D. 1995)
(applying de novo standard of review to tribal court comity
determination).


Footnote 12:

     982 P.2d at 761.


Footnote 13:

     See id. at 763.


Footnote 14:

     Although John v. Baker I held as a general matter that tribes
have jurisdiction over cases involving the children of members, see
id. at 765, there remained the question whether Northway properly
claimed jurisdiction on the individual facts of this case.  Where
a foreign tribunal has already adjudicated a case, inquiry into
jurisdiction is a part of comity analysis.  See id. at 764;
Restatement (Third) of Foreign Relations Law sec. 482 (1987). 


Footnote 15:

      We have, however, applied a presumption of validity to a
judgment from another state, even when full faith and credit was
not owed.  See State, Dep't of Pub. Safety, Div. of Motor Vehicles
v. Fann, 864 P.2d 533, 536 (Alaska 1993) (holding that "where DPS
seeks to use a foreign judgment to enhance a license revocation
period in Alaska, we analogize to the full faith and credit clause
to give presumptive validity to the foreign judgment"unless there
is reason to believe that foreign state judgment was
"constitutionally infirm").


Footnote 16:

     982 P.2d at 763.


Footnote 17:

     28 U.S.C. sec. 1738A (2000).


Footnote 18:

     Former AS 25.30.010-.910.


Footnote 19:

     See, e.g., Thoma v. Thoma, 934 P.2d 1066, 1073 (N.M. App.
1996).  While the Parental Kidnapping Prevention Act and Uniform
Child Custody Jurisdiction Act are not controlling sources of law
in this case, see John, 982 P.2d at 762, they do reflect the
measured consideration of lawmakers confronting issues closely
analogous to those presented to us today. 


Footnote 20:

     In re Marriage of Red Fox, 542 P.2d 918, 921 (Or. App. 1975);
see Leon v. Numkena, 689 P.2d 566, 568 (Ariz. App. 1984) (applying
same rule in recognizing tribal judgment); see also Malik v. Malik,
638 A.2d 1184, 1191 (Md. Spec. App. 1994) ("Pakistani court's
custody order is presumed to be correct, and this presumption
shifts to [party challenging comity] the burden of proving by a
preponderance of evidence that [comity is not warranted].").


Footnote 21:

     Mr. Baker offers an alternate burden of proof argument. He
maintains that because "[t]he party asserting a fact generally
bears the burden of proving that fact[, especially] when the party
controls the evidence which bears upon that fact,"Pinneo v.
Pinneo, 835 P.2d 1233, 1236 (Alaska 1992), allowing Ms. John to
benefit by Northway's loss of the record violates "fundamental
fairness." However, Mr. Baker does not claim that Ms. John ever
controlled the record in this case or that she was responsible for
its loss, nor does he claim that Northway somehow acted to advance
Ms. John's cause by misplacing the record.  It is therefore
difficult to see how "fundamental fairness"would require
penalizing her for the record's disappearance.  Nor is it clear
that reallocation of the burden of proof would be the appropriate
judicial response if a record did disappear under suspicious
circumstances, although loss of the record under such circumstances
would certainly raise significant due process concerns for a court
applying the comity doctrine.


Footnote 22:

     982 P.2d at 764.


Footnote 23:

     Mr. Baker argues that jurisdiction was lacking because he
submitted to the jurisdiction of the Northway Tribal Court, but the
case was instead heard by a hybrid Northway/Mentasta court.
Northway's notice of judgment clearly names the adjudicating court
as the Native Village of Northway Tribal Court; it gives no
indication that any other court participated in the case.  To the
extent that Mr. Baker complains that Mentasta members assumed an
informal or unrecorded adjudicatory role in this case, the issues
he raises relate to due process rather than jurisdiction.  

          Mr. Baker also argues that Northway lacked jurisdiction
because its proceeding was a "non-binding mediation." He cites no
relevant evidence for his claim that Northway intended the
proceeding to be "non-binding,"and offers no legal support for the
claim that the mediation-like character of the proceedings should
defeat the tribe's subject matter jurisdiction.

          Finally, Mr. Baker argues that this case arose on Indian
country, and that Public Law 280, 28 U.S.C. sec. 1360 (1993), which
extends Alaska's jurisdiction over disputes arising on Indian
country, deprives the Northway court of all jurisdiction.  Because
his brief offers virtually no discussion of the complex law
governing this claim, this argument is waived for inadequate
briefing.  See Adamson v. University of Alaska, 819 P.2d 886, 889
n.3 (Alaska 1991).


Footnote 24:

     982 P.2d at 765.


Footnote 25:

     Id. at 759.


Footnote 26:

     See id. at 759, 764.


Footnote 27:

     See id. at 764.  See also In re Baby Boy Doe, 849 P.2d 925,
930-31 (Idaho 1993) (where tribe has not made membership
determination in Indian Child Welfare Act case, state court must
decide). 


Footnote 28:

     See, e.g., In re Adoption of A.F.M., 15 P.3d 258, 262-63
(Alaska 2001) (interpreting and applying Washington law in
resolution of adoption case).

          Mr. Baker also argues that the court erred in its
interpretation of tribal law, because under Northway's law the
Baker children could not become Northway members without permission
from the mother's tribe.  The source cited by Mr. Baker does not
support his claim that permission from the mother's tribe is an
absolute prerequisite for membership.  Moreover, such a
requirement, if it existed, would not stop the children from being
eligible for membership in Northway.


Footnote 29:

     The Northway court was in a formative stage at the time it
heard this case; it is to be presumed that the court's organization
and administration have improved in its subsequent years of growth.


Footnote 30:

     See Alaska R. App. P. 210(i); Alaska R. App. P. 604(a)(2).


Footnote 31:

     Mr. Baker has presented no evidence to suggest that appeal
within Northway would not have sufficiently remedied the loss of
the hearing record.  In a situation such as this, a litigant's
failure to exhaust tribal remedies is a significant factor to be
considered when that litigant challenges comity.  While we do not
adopt a strict exhaustion requirement for tribal adjudication of
child custody cases, because such a requirement might in some cases
disserve the best interests of the child, we note that a party's
failure to seek tribal appellate review may seriously undermine any
claims that the tribal court denied him due process.


Footnote 32:

     982 P.2d at 763.


Footnote 33:

     Id. (citations omitted).


Footnote 34:

     Mr. Baker further alleges due process violations based on
Northway's alleged unwritten policy of denying all appeals; but the
source he cites does not reflect the existence of such a policy.
And he alleges that the Northway court's eight-month delay between
Mr. Baker's initial custody filing and the court's eventual action
was sufficiently excessive to violate due process.  Finally, he
alleges that due process was violated because one of the five
Northway judges who decided the case was not personally present for
the evidentiary hearing.  The superior court did not rely on any of
these claims in reaching its conclusion that due process had been
violated.  Because we determine that the record is not sufficiently
developed to support due process review, we do not discuss these
issues.


Footnote 35:

     The superior court did express "considerable concern"that,
based on the phone call, "the proceedings were not impartial from
the outset,"and implied at points in its opinion that the
telephone call was relevant to its assessment of the Mentasta
members' role in the evidentiary hearing.  We note that at least
one factual finding relied upon by the court in considering the
phone call was clearly erroneous: although the court found that
Nora David had "admitted involvement on the part of the Mentasta
tribe would be 'unfair,'" David's affidavit states only that
Mentasta participation might appear unfair to Mr. Baker.


Footnote 36:

     We may affirm the superior court's decision on any ground
supported by the record.  See Mackie v. Chizmar, 965 P.2d 1202,
1207 n.4 (Alaska 1998).


Footnote 37:

     See AS 25.30.300(a)(3) (under Uniform Child Custody
Jurisdiction and Enforcement Act, Alaska courts may only exercise
jurisdiction if a court of the child's home state declines
jurisdiction because it recognizes Alaska as more appropriate
forum); AS 25.30.860(a) (authorizing state courts to contact courts
in other states regarding custody proceedings); AS 25.30.880
(authorizing state courts to request assistance from courts of
other states, such as conducting hearings, issuing court orders,
and sharing information); see also Uniform Child Custody
Jurisdiction & Enforcement Act sec. 101 cmt., 9 pt. 1A U.L.A. 657
(1999) (Act's goals include avoidance of jurisdictional competition
and promotion of cooperation between courts).


Footnote 38:

     The parties dispute whether First Chief David was named on the
custody petition because of her personal connection to the case or
because of her official interest, as Mentasta's First Chief, in the
earlier petition filed by Ms. John in the Mentasta Tribal Court.


Footnote 39:

     John, 982 P.2d at 763.


Footnote 40:

     Outside of Alaska's Rules of Court, the general rule for
records which are so incomplete as to preclude meaningful review
calls for remand to the factfinder.  See State, Dep't of Revenue v.
Merriouns, 894 P.2d 623, 627 n.4 (Alaska 1995) ("when the factual
record is incomplete or improperly developed, the proper course is
a remand to the factfinder, in this case the agency").


Footnote 41:

     Alaska Rule of Appellate Procedure 210(i) provides:

               Power of Court to Correct, Modify or
Supplement.  It is not necessary for the record on appeal to be
approved by the trial court or a judge thereof except as provided
in subparagraph (b)(8) and in Rule 211, but if any difference
arises whether the record truly discloses what occurred in the
trial court, the difference shall be submitted to and settled by
that court and the record made to conform to that court's decision.
If anything material to either party is omitted from the record on
appeal by error or accident by court personnel, or is misstated
therein, the parties by stipulation, the trial court, or the
appellate court, on a proper suggestion or of its own initiative,
may direct that the omission or misstatement shall be corrected.
All other questions as to the content and form of the record shall
be presented to the appellate court.  On motion in the appellate
court, and for cause, an excerpt of record may be modified or
supplemented to correct omissions by counsel.


Footnote 42:

     Rule 604(a)(2) provides:

               Power of Court to Correct or Modify
Record of District Court.  If any differences arise as to whether
the record on appeal truly discloses what occurred in the district
court, the difference must be submitted to and settled by the
superior court and the record made to conform to it.  If anything
material to either party is omitted from the record on appeal by
error or accident or is misstated therein, the parties by
stipulation, the district court, or the superior court, on motion
or of its own initiative, may direct that the omission or
misstatement be corrected.


Footnote 43:

     Rule 604(a)(2).


Footnote 44:

     They are "submitted to and settled by the superior court and
the record made to conform to it."


Footnote 45:

     Under Rule 210(i), "if any difference arises whether the
record truly discloses what occurred in the trial court, the
difference shall be submitted to and settled by that court and the
record made to conform to that court's decision"; other "questions
as to the content and form of the record shall be presented to the
appellate court."


Footnote 46:

     Rule 210(b)(8) provides:

               Statement in Lieu of Transcript.  In the
event no stenographic report or electronic recording of the
evidence or proceedings at a hearing or trial was made, the
appellant may prepare a statement of the evidence of proceedings
from the best available means, including the appellant's
recollection, for use instead of a stenographic or electronically
recorded transcript.  This statement shall be served on the
appellee, who may serve objections or proposed amendments, and
shall be submitted to the court from which the appeal is being
taken for settlement and approval.  As settled and approved, the
statement shall be filed with the clerk of that court and
transmitted to the appellate court in lieu of a transcript.


Footnote 47:

     AS 25.30.880, which governs interactions between state courts
under the Uniform Child Custody Jurisdiction and Enforcement Act,
provides one model for cooperation between courts of concurrent
jurisdiction:

               (a)  A court of this state may request
the appropriate court of another state to

               (1)  hold an evidentiary hearing;
 
               (2)  order a person to produce or give
evidence under procedures of that state;

               (3)  order that an evaluation be made
with respect to the custody of a child involved in a pending
proceeding;

               (4)  forward to the court of this state a
certified copy of the transcript of the record of the hearing, the
evidence otherwise presented, and any evaluation prepared in
compliance with the request; and

               (5)  order a party to a child custody
proceeding or a person having physical custody of the child to
appear in the proceeding with or without the child.

               (b)  On request of a court of another
state, a court of this state may hold a hearing or enter an order
described in (a) of this section.



                     Footnotes (Concurrence)

Footnote 1:

     See John v. Baker, 982 P.2d 738, 765 (Alaska 1999).


Footnote 2:

     A number of courts have indicated that the law of the case
doctrine exerts a stronger claim on the finality of prior rulings
than the doctrine of stare decisis.  See, e.g., Zdanok v. Glidden
Co., 327 F.2d 944, 952 (2d Cir. 1964); White v. Higgins, 116 F.2d
312, 317 (1st Cir. 1940).