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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 the Adoption of Erin G. (08/04/2006) sp-6032

In the Matter of the Adoption of Erin G. (08/04/2006) sp-6032, 140 P3d 886

     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,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


IN THE MATTER OF THE )
ADOPTION OF ) Supreme Court No. S- 11929
)
ERIN G., ) Superior Court No. 4FA-02-0057 PR/A
)
A Minor Child. ) O P I N I O N
)
No.
6032 - August 4, 2006


          Appeal  from the Superior Court of the  State
          of    Alaska,   Fourth   Judicial   District,
          Fairbanks, Richard D. Savell, Judge.

          Appearances: Kenneth C. Kirk, Kenneth Kirk  &
          Associates, Anchorage, for Appellant David L.
          Daniel  L.  Callahan,  Callahan  Law  Office,
          Fairbanks,  for Appellees Christopher   Grant
          and Doris Grant.

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

          EASTAUGH, Justice.
          BRYNER, Justice, dissenting.

I.   INTRODUCTION
          David  L.  is the putative father of Erin G.   Invoking
the  Indian Child Welfare Act (ICWA), he sought to set aside  the
decree  granting the petition of Christopher and Doris  Grant  to
adopt  Erin.   The  superior  court held  that  AS  25.23.140(b),
Alaskas  one-year statute of limitations for challenging adoption
decrees, barred Davids petition.  He appeals.  Because it appears
that  Congress intended that state statutes of limitations  would
generally  apply  to  ICWA challenges to  placement  decrees,  we
affirm.
II.  FACTS AND PROCEEDINGS
          Erin  G.  was  born  in  2001 to  Joanne  A.,  who  was
unmarried and ill with terminal cancer.1  Erin is an Indian child
within  the  meaning  of the Indian Child  Welfare  Act  (ICWA).2
Before  her death, Joanne sought to permanently place  Erin  with
appellees Christopher and Doris Grant.  The Grants petitioned  to
adopt Erin in late January 2002. In February Joanne consented  to
termination of her parental rights. She also identified appellant
David L. as the father.3
          The  Grants  attorney formally notified  David  of  the
adoption  petition,  and  filed a copy of  the  notice  with  the
superior  court,  in March 2002.  David obtained  court-appointed
counsel and, through counsel, objected to the proposed adoption.
          The  Grants  moved for summary judgment against  David,
arguing  that  Davids consent to the adoption was  not  necessary
under  either  state law or ICWA because David had  not  properly
acknowledged  paternity of Erin.  In opposing the Grants  motion,
David submitted several signed but unsworn statements in which he
appeared to assert that he was Erins father.
          On  August 12, 2002 the superior court granted  summary
judgment  to  the Grants.  It ruled that because  David  had  not
produced a sworn statement acknowledging paternity or the results
of  a blood test, he was not a parent as defined by state law  or
ICWA, and therefore could not object to the adoption.
          On  September  4, 2002 the court entered  the  adoption
decree  and the Grants assumed legal custody of Erin.  Meanwhile,
David appealed the grant of summary judgment against him.  He was
dissatisfied  with his court-appointed attorney and  requested  a
new  attorney  for  the appeal.  The superior court  granted  his
request,  but the new attorney did not pursue Davids appeal,  and
on April 21, 2003 we dismissed that appeal under Alaska Appellate
Rule  511.5  for  lack of prosecution.  David continued  to  file
motions  and  write letters to the superior court  regarding  his
case.   In late January 2004 the superior court appointed a third
attorney, Kenneth Kirk, to represent David regarding any  further
post decree motions or appeals in this matter.  In March 2004  we
denied Attorney Kirks motion to reinstate Davids appeal.
          David continued filing pro se motions with the superior
court  throughout  the remainder of 2004.  On  October  21,  2004
David filed a Petition to Invalidate Adoption, one of the motions
at  issue  in this appeal.  His petition claimed that the  Grants
adoption  of  Erin  violated  various  provisions  of  ICWA.   On
December  7,  2004  the  superior court summarily  denied  Davids
petition.   David  then filed a Motion Pursuant  to  Petition  to
Invalidate  Illegal  Adoption in which  he  again  requested  the
invalidation  of  the  adoption and  also  sought  a  grand  jury
indictment  of the Grants for kidnapping.  On March 1,  2005  the
superior  court  issued  an  opinion  thoroughly  addressing  and
rejecting all of Davids arguments regarding the adoption.
          In  a  letter of March 9 David asked the superior court
to  appoint  him an attorney to appeal the courts decision.   The
court  apparently  took no action on this request  because  David
submitted a second request on April 15.  On April 27 the superior
court  reappointed  Attorney Kirk, who then  filed  a  notice  of
appeal in this court and a motion to accept late filing on May 9.
          The Grants and the Guardian ad Litem both opposed that motion.
This court, by order of an individual justice, granted the motion
to accept the late filing.
III. DISCUSSION
     A.   Standard of Review
          We  apply our independent judgment to resolve questions
of  statutory interpretation, adopting the rule of  law  that  is
most  persuasive in light of precedent, reason, and policy.4   We
liberally  construe statutes enacted for the benefit of  Indians,
resolving all doubts . . . in favor of the Indians.5
     B.    Davids Failure To Comply with the Deadline for  Filing
Appeals Is          Excused.

          The  Grants  argue  that Davids appeal  was  untimely.6
They note that the superior court distributed its final order  on
March  3, 2005, but that David did not file his notice of  appeal
until May 9, 2005.  Alaska Appellate Rule 218(d) requires that  a
notice  of appeal in this class of cases be filed within  fifteen
days   after  the  date  shown  on  the  clerks  certificate   of
distribution  of the order or judgment.  But the time  limit  for
filing a notice of appeal is not jurisdictional and the rule  may
be relaxed or dispensed with to avoid surprise or injustice.7
          Although  Davids appeal was late, the record  indicates
that  he made a good-faith effort to appeal by the deadline.  His
March  9, 2005 letter to the superior court indicated his  desire
to  appeal and asked the court to appoint him counsel.  He  wrote
the  court again on April 15, expressing worry that his  time  to
appeal would expire if the court did not act on his request.   We
have  held  that pro se litigants who make good faith efforts  to
comply  with court rules should not be held to strict  procedural
requirements.8   David may technically have been  represented  by
Kenneth  Kirk  during  this period, but neither  David  nor  Kirk
believed  Kirks  representation  was  ongoing.9   Once  Kirk  was
reappointed  as  Davids  attorney, he filed  this  appeal  within
twelve days.
          Because of Davids good-faith attempt to file his appeal
within the time limit and confusion about whether Kirk was  still
his  appointed  counsel in March 2005, Davids failure  to  comply
with the time limits in Appellate Rule 218(d) is excused.
     C.    Alaskas  One-Year Statute of Limitations  on  Adoption
     Challenges     Bars Davids ICWA Claims.
     
          Per  AS 25.23.140(b), a challenge to an adoption decree
must be filed within one year after the decree is issued.10   The
superior  court held that this one-year limitation barred  Davids
petition  to  invalidate the adoption decree.  David argues  that
state  statutes  of  limitations should  not  apply  to  adoption
challenges brought under ICWA, a federal statute.
          Section  1914  of  ICWA  allows any  parent  or  Indian
custodian  from  whose custody [an Indian] child was  removed  to
petition  any court of competent jurisdiction to invalidate  such
action upon a showing that such action violated any provision  of
sections  1911,  1912 and 1913 of this title.11   ICWA  does  not
contain  a generally applicable statute of limitations and   1914
          contains no time limits.12  David maintains that because ICWA
contains  no  general statute of limitations, challenges  may  be
brought under  1914 at any time.
          1.    In  re  Adoption of T.N.F. does  not  have  stare
decisis effect.
          We  have previously considered whether AS 25.23.140(b),
Alaskas  one-year limitation on adoption challenges,  applies  to
claims brought under  1914 of ICWA.  In In re Adoption of T.N.F.,
two  of the four participating justices agreed that Alaskas  one-
year  statute of limitations applied,13 one justice concurred  in
the  result  without  discussing the merits  of  the  statute  of
limitations  question,14 and one justice dissented, arguing  that
1914 allows at least some ICWA claims to be brought at any time.15
          The  parties here dispute T.N.F.s stare decisis effect.
Stare  decisis compels us to give precedential value to our prior
holdings.16   David argues that because T.N.F. lacks  a  majority
opinion  it  should not be given any stare decisis  effect.   The
Grants counter that the pluralitys opinion should be given  stare
decisis  effect  because  a  majority of  participating  justices
agreed with the result.
          We  agree  with Davids conclusion that T.N.F. does  not
have  stare  decisis  effect.  A majority  of  the  participating
justices  did  not  agree  on  a rationale  for  deciding  T.N.F.
Generally,  [i]f a majority of the court agreed on a decision  in
the  case,  but less than a majority could agree on the reasoning
for that decision, the decision has no stare decisis effect.17  In
some cases, a holding can be extracted from an opinion without  a
majority opinion.  The United States Supreme Court has held  that
[w]hen  a fragmented court decides a case and no single rationale
explaining  the  result enjoys the assent of five  Justices,  the
holding  of  the  court may be viewed as that position  taken  by
those  Members  who concurred in the judgment  on  the  narrowest
grounds.18  But one federal court has noted that this principle is
inapplicable  if there is no obvious narrower opinion  or  common
denominator of the Courts reasoning.19
          T.N.F.  contains no narrower reasoning agreed  upon  by
all  three  affirming justices.  The concurring justice expressed
no  opinion on the statute of limitations issue, and in  agreeing
with the result, he reasoned that ICWA did not give the plaintiff
standing   to  sue.20   The  two-justice  plurality  specifically
disagreed  with  the concurring justice on the standing  issue.21
Because  a  majority of the participating justices in T.N.F.  did
not  agree  on  any one ground for affirmance, we do  not  accord
T.N.F. stare decisis effect.22

          2.    Alaskas one-year statute of limitations  applies.
Even  though  T.N.F.  is not binding precedent,  we  nevertheless
agree  with  the  reasoning  of  the  plurality  opinion  on  the
limitations issues.
          Congress did not include a generally applicable statute
of  limitations  in  ICWA.  It specified a  two-year  statute  of
limitations  for  one class of ICWA claims, those  brought  under
1913(d).   The absence of a general statute of limitations  is  a
void which is commonplace in federal statutory law.23  The United
          States Supreme Court has held that [w]hen Congress has not
established a time limitation for a federal cause of action,  the
settled  practice  has been to adopt a local time  limitation  as
federal law if it is not inconsistent with federal law or  policy
to do so.24  Apart from T.N.F., no reported case has discussed the
issue  of what statute of limitations applies for claims  brought
under  1914 of ICWA.25  But courts have borrowed state statutes of
limitations  in considering the timeliness of claims  under  many
federal  statutes,  including  the  Employee  Retirement   Income
Security Act,26 the False Claims Act,27 the Worker Adjustment and
Retraining Notification Act,28 the Labor-Management Reporting and
Disclosure  Act,29  42  U.S.C.   1983,30  the  Individuals   with
Disabilities Education Act,31 and the Labor Management  Relations
Act.32
          David  asks  us  to  hold  that no  limitations  period
whatsoever applies to his  1914 challenge to the adoption decree.
But he cites no case in which a court has held that no statute of
limitations  applies  to  a  federal statutory  claim.   Although
courts have occasionally suggested that certain federal causes of
action have no applicable statutes of limitation, such causes  of
action  appear to be rare.33  Courts, reasoning that the proposed
state statute of limitations would be an unsatisfactory vehicle[]
for  the  enforcement of federal law, do sometimes  hold  that  a
particular state statute of limitations should not be applied  to
a  given  federal  claim.34  But in such  cases   none  of  which
involves  ICWA   courts have either borrowed  a  different  state
statute of limitations,35 or they have used timeliness rules drawn
from federal law  either express limitations periods from related
federal statutes, or such alternatives as laches.36
          Applying  Alaskas one-year statute of  limitations  for
challenging  adoption  decrees to ICWA  adoption  challenges  not
based  on fraud or duress does not conflict with federal  law  or
policy.   As  noted  above,  Congress regularly  creates  private
rights  of  action  without  statutes  of  limitations.   It   is
reasonable to assume that Congresss enactment of ICWA  without  a
general  statute  of  limitations was  informed  by  the  settled
practice  of borrowing statutes of limitations from state  law.37
If  Congress had intended to exempt claims under  1914 from state
statutes  of  limitations,  it could have  easily  done  so  with
explicit  statutory  language.   And  indeed,  if  Congress   had
intended  that   1914  claims challenging  placements,  including
adoptions,  would be subject to no time limitations  despite  the
disruptive   consequences  of  delay,  one  would   expect   some
indication of that intent in ICWAs legislative history.   We  are
aware of no such indication of legislative intent.
          Moreover,   1913(d) indicates that Congress  must  have
intended  to  allow  state limitations  periods  to  govern  ICWA
claims.   Congress  there adopted a two-year federal  statute  of
limitations  for claims that a parents relinquishment  of  rights
was  obtained through fraud or duress, unless state law  provides
for   a   longer   limitations  period.38    Subsection   1913(d)
demonstrates  that  Congress  was aware  of,  and  endorsed,  the
practice of borrowing state statutes of limitations.  It suggests
that the drafters understood that state limitations periods would
          govern ICWA challenges unless Congress specified otherwise.
Congress did so only as to claims brought under  1913(d).
           Obtaining a parents consent to termination by fraud or
duress  is arguably one of the most egregious placement practices
addressed  by  ICWA.   Congresss  decision  to  adopt  a  minimum
limitations period only for fraud and duress claims suggests that
it  was  comfortable  with  the possibility  that  shorter  state
limitations periods would govern claims brought under other  ICWA
provisions.  Conversely, it is unlikely that Congress would  have
limited  the  time  for  bringing claims  under   1913(d)  if  it
intended  that  other  1914 claims would be subject  to  no  time
limits.
          Also,  we  agree  with  the  reasoning  of  the  T.N.F.
plurality  that   1913(d)  implicitly  recognizes  the  important
policy that at some point adoptions must become final.39  Although
a  primary  purpose  of  ICWA  is to promote  the  stability  and
security  of  Indian  tribes  and  families  by  preventing   the
unwarranted breakup of Indian families, ICWA is also intended  to
protect  the best interests of Indian children.40 As we noted  in
another case:
          [a]doptive  custody  results  in  the   rapid
          development    of   lasting   and    powerful
          psychological  ties between adoptive  parents
          and   children,  especially  young  children.
          Once  formed,  these  bonds  can  seldom   be
          severed  without irreparable  damage  to  the
          childs well-being.[41]
          
ICWA  is remedial legislation and must be liberally construed  in
favor of Indians,42 but we do not think that an interpretation of
ICWA  that  would completely disregard Indian childrens interests
in  finality  and  stability would be consistent  with  Congresss
intent  in enacting the statute.  We therefore hold that  Alaskas
one-year  statute of limitations provides an appropriate  balance
between  the  important  federal  rights  of  Indian  tribes  and
families and the best interests of adopted children.
          David  argues  that   1921 of ICWA  prohibits  us  from
applying any statute of limitations to ICWA claims.  Section 1921
states:
          In  any  case  where  State  or  Federal  law
          applicable  to  a  child  custody  proceeding
          under  State or Federal law provides a higher
          standard of protection to the rights  of  the
          parent or Indian custodian of an Indian child
          than   the   rights   provided   under   this
          subchapter, the State or Federal court  shall
          apply the State or Federal standard.[43]
          
David   contends  that  because  ICWA  provides  no  statute   of
limitations,  ICWA  is a Federal law . . . provid[ing]  a  higher
standard  of  protection to the rights of the parent  and  should
therefore trump Alaskas statute of limitations.
          Section  1921,  on  its face, does not  support  Davids
interpretation.   That provision requires that State  or  Federal
          law prevail if it provides more protection than the rights
provided  under this subchapter.  Because the statute requires  a
comparison  between State or Federal law and the rights  provided
under this subchapter, State or Federal law can only mean a state
or federal law other than ICWA.  Furthermore, a special provision
is  not necessary to ensure that a federal statute of limitations
or,  as  alleged  in this case, a purported federal  policy  that
lawsuits  be  allowed at any time  prevails  over  a  conflicting
state   statute   of   limitations.   Basic  federal   preemption
principles  require  the same result.44   Davids  argument  fails
because  he cannot show that Congresss silence on the limitations
issue  indicates  an intention to allow ICWA  challenges  at  any
time.   Section 1921 does not shed any additional light  on  this
question.
          Alaska  Statute 25.23.140(b) provides that, subject  to
the  disposition of an appeal, an adoption cannot  be  questioned
upon the expiration of one year after the decree is issued.   The
superior court issued the adoption decree on September 6, 2002.45
Per  AS  25.23.140(b), any challenge to the adoption filed  after
September 4, 2003 was untimely.  Davids October 21, 2004 petition
to invalidate Erins adoption was therefore time-barred.
IV.  CONCLUSION
          For  the  foregoing reasons, we AFFIRM the decision  of
the  superior  court denying Davids petition  to  invalidate  the
adoption.
BRYNER, Justice, dissenting.
          For  the reasons expressed by Justice Rabinowitz in his
dissenting  opinion in In re Adoption of T.N.F.,1 I dissent  from
the  courts  decision that Davids challenge under ICWA   1914  is
governed by Alaskas statute of limitations.  In my view,  Justice
Rabinowitzs dissent bears repetition here because it persuasively
responds to the interpretation of congressional intent adopted by
todays opinion:
               Given the unambiguous text of   1913(a),
          I conclude Congress intended that any consent
          obtained   in   violation   of   the   strict
          procedural  safeguards governing  termination
          of  parental rights was to have no  force  or
          effect.  It follows that an adoption based on
          an  invalid  consent is void ab  initio,  and
          that  a petition to vacate such a void decree
          can,  pursuant  to   1914, be  filed  at  any
          time.
          
               Admittedly, the factual circumstances of
          this  case  are highly unusual and there  are
          significant  considerations  which   militate
          against disturbing any parent-adoptive  child
          relationship.  Nevertheless, I  believe  that
          my   reading  of    1913(a)  and    1914   is
          consonant  with  Congress overall  intent  in
          enacting  the  Indian Child Welfare  Act  and
          with  the  specific intent reflected  in  the
          procedural safeguards provided in   1913(a).
          
               It  is  apparent that the provisions  of
          1913(a)   were   designed  to  increase   the
          likelihood  that a consent to termination  of
          parental   rights  was  in  fact  voluntarily
          given.  If, but only if, ICWAs procedures are
          followed does the Act achieve its purpose  to
          establish minimum Federal standards  for  the
          removal   of   Indian  children  from   their
          families.    25  U.S.C.  1902  (Supp.  1987).
          If,  but  only if, such procedures have  been
          followed  should a parent of an Indian  child
          need   allege   fraud,   duress,   or   other
          misconduct.
          
               I cannot agree that the absence of fraud
          or duress under  1913(d) impliedly limits the
          protections  of   1913(a).  1913(d)  delimits
          minimum  not maximum protection;  it  expands
          not  contracts the rights of Indian  parents.
          The  majority  instead construes  the  narrow
          provision of   1913(d) to restrict the  broad
          scope of ICWA and hobble its purpose.1
          
          __________________________________
          
               1     The  legislative history  of  ICWA
               discloses that Congress was aware of the
          following considerations:
          
               The   decision   to   take   Indian
               children  from their natural  homes
               is,  in  most  cases,  carried  out
               without due process of law. . . .
               
                    Many  cases do not go  through
               an  adjudicatory  process  at  all,
               since   the  voluntary  waiver   of
               parental rights is a device  widely
               employed by social workers to  gain
               custody  of  children.  Because  of
               the  availability  of  waivers  and
               because  a  great number of  Indian
               parents  depend on welfare payments
               for  survival, they are exposed  to
               the sometimes coercive arguments of
               welfare departments.
               
          See  H.R. Rep. No. 1386, 95th Cong., 2d Sess.
          11  (1978), reprinted in 1978 U.S. Code Cong.
          & Admin. News 7530, 7533.[2]
          
_______________________________
     1     We  use  pseudonyms  for all family  members  and  the
adoptive parents.

     2    Indian Child Welfare Act  4, 25 U.S.C.  1903(4) (2000).

     3    Although Joanne at first refused to identify David, she
indicated  that  the  father  was currently  incarcerated  for  a
certain well-publicized crime.  She also mentioned his last name.
The  superior court indicated its intent to take judicial  notice
of the fact that David was the person identified by Joanne.

     4    State v. Dupier, 118 P.3d 1039, 1044 (Alaska 2005).

     5    In re L.A.M., 727 P.2d 1057, 1060 (Alaska 1986).

     6     The fact that the Grants unsuccessfully opposed Davids
individual-justice  motion to accept the late-filed  appeal  does
not  preclude them from again raising the issue of timeliness  in
their briefing.  See Radich v. Fairbanks Builders, Inc., 399 P.2d
215, 217 (Alaska 1965).

     7    Isaacson Structural Steel Co., Div. of Isaacson Corp v.
Armco Steel Corp., 640 P.2d 812, 815 n.8 (Alaska 1982); see  also
Radich, 399 P.2d at 217.

     8    Noey v. Bledsoe, 978 P.2d 1264, 1270 (Alaska 1999).

     9     Kirk  stopped  working on Davids case when  we  denied
Davids  motion  for  reconsideration in  2004.   David  continued
filing motions from prison, apparently without copying Kirk  with
those motions.  Nor did the Grants serve Kirk with their response
to  Davids  motions.   It is therefore understandable  that  Kirk
believed that his representation of David had ended.

     10    AS 25.23.140(b) states:

          Subject to the disposition of an appeal, upon
          the  expiration of one year after an adoption
          decree  is  issued,  the decree  may  not  be
          questioned   by  any  person  including   the
          petitioner,  in any manner upon  any  ground,
          including  fraud, misrepresentation,  failure
          to  give  any  required notice,  or  lack  of
          jurisdiction of the parties or of the subject
          matter,  unless, in the case of the  adoption
          of  a  minor  the petitioner  has  not  taken
          custody of the minor, or, in the case of  the
          adoption  of  an  adult,  the  adult  had  no
          knowledge  of the decree within the  one-year
          period.
          
     11    Indian Child Welfare Act  104, 25 U.S.C.  1914 (2000).
Section  1911  of ICWA establishes the jurisdictional  rights  of
Indian tribes, including the right to exclusive jurisdiction over
Indian  children residing within a reservation and the  right  to
intervene  in  other proceedings.  Section 1912 provides  parents
and  Indian custodians with certain procedural rights,  including
the  right  to  notice,  counsel, and discovery.   It  also  sets
standards for termination of parental rights.  Section 1913  sets
out  the  requirements for a voluntary relinquishment of parental
rights.   David claimed violations of portions of  all  three  of
these provisions.

     12     As  discussed  below,  ICWA  does  impose  a  minimum
limitations  period  of  two years for  actions  challenging,  on
grounds  of  fraud  or  duress, the voluntary  relinquishment  of
parental  rights.  25 U.S.C.  1913(d).  David does  not  rely  on
this provision.

     13     In  re Adoption of T.N.F., 781 P.2d 973, 981  (Alaska
1989).

     14    Id. at 98284 (Compton, J., concurring).

     15    Id. at 98485 (Rabinowitz, J., dissenting).

     16     Joseph v. State, 26 P.3d 459, 468 (Alaska 2001);  see
also  Thomas v. Anchorage Equal Rights Commn, 102 P.3d  937,  943
(Alaska  2004) (holding that the court will not overrule previous
holding   entitled  to  stare  decisis  effect  unless    clearly
convinced that the rule was originally erroneous or is no  longer
sound because of changed conditions, and that more good than harm
would  result  from  a departure from precedent   (quoting  State
Commercial  Fisheries Entry Commn v. Carlson, 65  P.3d  851,  859
(Alaska 2003))).

     17     Ware  v.  Kentucky, 47 S.W.3d  333,  335  (Ky.  2001)
(quoting  20 Am. Jur. 2d Courts  159 (1995)); see also  Negri  v.
Slotkin, 244 N.W.2d 98, 100 (Mich. 1976) (Plurality decisions  in
which  no majority of the justices participating agree as to  the
reasoning are not an authoritative interpretation binding on this
Court under the doctrine of Stare decisis.).

     18     Marks  v.  United States, 430 U.S.  188,  193  (1977)
(internal quotation marks omitted); see also Cowles v. State,  23
P.3d 1168, 1178 n.28 (Alaska 2001) (Fabe, J., dissenting) (noting
Markss narrowest ground principle).

     19    Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d
161, 16970 (3d Cir. 1999).

     20    T.N.F., 781 P.2d at 98284 (Compton, J., concurring).

     21    Id. at 97578.

     22    The Grants also suggest that David waived his argument
that  T.N.F. lacked precedential force because he failed to raise
it  with the superior court in his reply to the Grants opposition
to  his petition to invalidate the decree.  It is true that David
failed  to  respond to the Grants argument that  T.N.F.s  holding
barred  his  case.  But [w]e will consider arguments  not  raised
explicitly  in  the  trial court . . . if the  issue  is  1)  not
dependent  on any new or controverted facts;  2) closely  related
to  the appellants trial court arguments;  and 3) could have been
gleaned from the pleadings.  McConnell v. State, Dept of Health &
Soc.  Servs., Div. of Med. Assistance, 991 P.2d 178, 183  (Alaska
1999) (internal quotations and citations omitted).  In this case,
all three of these requirements are met.  We also note that David
was  effectively acting pro se at the time and that his pleadings
are  therefore held to less stringent standards.  See DeNardo  v.
Calista Corp., 111 P.3d 326, 330 (Alaska 2005).

     23     Bd.  of Regents v. Tomanio, 446 U.S. 478, 483  (1980)
(holding that plaintiffs 42 U.S.C.  1983 claim was subject to New
York statutes of limitations).

     24    Wilson v. Garcia, 471 U.S. 261, 26667 (1985); see also
Graham  County Soil & Water Conservation Dist. v. United  States,
125  S.  Ct. 2444, 2448 (2005); N. Star Steel Co. v. Thomas,  515
U.S.  29, 3334 (1995); Reed v. Transp. Union, 488 U.S. 319, 32324
(1989).   Although Congress passed a catch-all law in  1990  that
established a four-year limitations period for all federal claims
without  limitations  provisions, that statute  only  applies  to
civil actions arising under an Act of Congress enacted after  the
date  of the enactment of this section. 28 U.S.C.  1658.  All  of
the  ICWA provisions at issue in this case were enacted in  their
current  form  in  1978, well before the 1990  enactment  of  the
federal catch-all statute of limitations.

     25     A few treatises have discussed whether state statutes
of  limitations  apply to ICWA claims, but their discussions  are
generally  cursory.  See, e.g., Thomas Jacobs, Children  and  the
Law:  Rights and Obligations  5:13 (2006), available at  Westlaw,
CALRO   5:13 (concluding that state statutes of limitations apply
to   adoption  challenges  under  ICWA);  Conference  of  Western
Attorneys General, American Indian Law Deskbook 496 (3d ed. 2004)
(stating  that state limitations periods are applicable  to  ICWA
claims);  Jesse  C.  Trentadue & Myra A. DeMontigny,  The  Indian
Child Welfare Act of 1978:  A Practitioners Perspective, 62  N.D.
L.  Rev. 487, 536 (1986) (concluding that claims under  1914  may
be  subject to state limitations periods unless challenged  order
is void ab initio), cited in T.N.F., 781 P.2d at 979; B.J. Jones,
The  Indian  Child Welfare Act Handbook 101 (1995)  (noting  that
there does not appear to be any statute of limitations associated
with the use of  1914).

     26     N.  Cal. Retail Clerks Unions & Food Employers  Joint
Pension Trust Fund v. Jumbo Mkts., Inc., 906 F.2d 1371, 1372 (9th
Cir. 1990).

     27     Graham  County, 125 S. Ct. at 2453 (holding  that  no
False  Claims  Act  time limitations applied  and  remanding  for
determination of which state statute of limitations to borrow).

     28    N. Star Steel, 515 U.S. at 3335.

     29    Reed, 488 U.S. at 32324.

     30    Tomanio, 446 U.S. at 483484.

     31     Livingston Sch. Dist. Nos. 4 & 1 v. Keenan,  82  F.3d
912, 918 (9th Cir. 1996).

     32     Waggoner v. Dallaire, 649 F.2d 1362, 1367  (9th  Cir.
1981).

     33     See, e.g., Rhines v. Weber, 544 U.S. 269, 274  (2005)
(noting  that  until 1996 there was no statute of limitations  on
federal habeas corpus petitions); Oneida County v. Oneida  Indian
Nation, 470 U.S. 226, 243 (1985) (noting that certain land claims
under  the  Indian Claims Limitation Act of 1982 are exempt  from
the limitations provisions in 28 U.S.C.  2415).

     34     Barajas  v.  Bermudez, 43 F.3d 1251, 1260  (9th  Cir.
1994);  see also DelCostello v. Intl Bhd. of Teamsters, 462  U.S.
151, 16163 (1983).

     35    Barajas, 43 F.3d at 1260.

     36    DelCostello, 462 U.S. at 162.

     37    Wilson, 471 U.S. at 26667.

     38    25 U.S.C.  1913(d) provides:

          After the entry of a final decree of adoption
          of  an  Indian child in any State court,  the
          parent may withdraw consent thereto upon  the
          grounds  that  consent was  obtained  through
          fraud or duress and may petition the court to
          vacate such decree. Upon a finding that  such
          consent was obtained through fraud or duress,
          the court shall vacate such decree and return
          the  child  to the parent. No adoption  which
          has been effective for at least two years may
          be  invalidated under the provisions of  this
          subsection  unless otherwise permitted  under
          State law.
          
(Emphasis  added.)   As  the T.N.F. plurality  pointed  out,  the
legislative history explains that [t]his right is limited to  two
years  after  entry of the the decree unless a longer  period  is
provided by state law.  T.N.F., 781 P.2d at 979 (quoting H.R. No.
95-1386,  95th  Cong.,  2d  Sess. 23 (1978),  reprinted  in  1978
U.S.C.C.A.N. 7530, 754546).

     39    T.N.F., 781 P.2d at 980.

     40    25 U.S.C  1902.

     41     Hernandez  v.  Lambert, 951 P.2d 436,  44142  (Alaska
1998);  see  also  T.N.F., 781 P.2d at 980 (To  allow  collateral
attacks  on  final  adoption decrees at  any  time  threatens  to
unreasonably disrupt the upbringing of the adopted child.).

     42    See In re L.A.M., 727 P.2d 1057, 1060 (Alaska 1986).

     43    25 U.S.C.  1921.

     44    See State v. Dupier, 118 P.3d 1039, 1049 (Alaska 2005)
(noting  that  state  laws are preempted if there  is  an  actual
conflict between federal and state law).

     45    AS 25.23.140(b) refers to the date on which an adoption
decree  is  issued  without defining that term.   Because  Davids
petition  was  late under any possible definition of  issued,  we
need  not  determine  its  precise definition  in  this  context.
Rather,  we  assume without deciding that an adoption  decree  is
issued  on  the  date it is distributed to the parties,  in  this
case,  on  September  6,  2002.   Cf.  Alaska  R.  Civ.  P.  58.1
(providing  for  judgments, that time  for  appeal,  review,  and
reconsideration   begins  running  on  date   shown   in   clerks
certificate of distribution entered on written judgment).

1    781 P.2d 973, 984 (Alaska 1989).

     2    Id. at 984-85 & n.1.

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