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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Starr v. George (01/18/2008) sp-6224

Starr v. George (01/18/2008) sp-6224, 175 P3d 50

     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


DENNIS STARR and DELORES )
STARR, ) Supreme Court No. S- 12456
)
Appellants, ) Superior Court No. 1JU-04-869 CI
)
v. ) O P I N I O N
)
RICHARD GEORGE; BARBARA ) No. 6224 January 18, 2008
GEORGE; and DENNI STARR )
)
Appellees. )
)

          Appeal  from the Superior Court of the  State
          of  Alaska, First Judicial District,  Juneau,
          Larry R. Weeks, Judge.

          Appearances:  Kenneth C. Kirk, Kenneth Kirk &
          Associates, Anchorage, for Appellants.  Holly
          Handler,  Alaska Legal Services  Corporation,
          Juneau,  for  Appellees  Richard  George  and
          Barbara  George.  Lisa B. Nelson,  Anchorage,
          for Appellee Denni Starr.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, and Carpeneti, Justices.   [Bryner,
          Justice, not participating.]

          EASTAUGH, Justice.

I.   INTRODUCTION
          Richard   and   Barbara   George   are   the   paternal
grandparents of two young Tlingit children. They filed a superior
court  custody petition and served Dennis and Delores Starr,  the
maternal  grandparents.  The Georges had previously been  granted
visitation   with  the  children  in  state  court   guardianship
proceedings  brought  by the Starrs after  the  childrens  mother
killed their father.  While these three superior court cases were
still  pending,  the  Starrs obtained tribal council  resolutions
approving their adoption of the children.  The Starrs then  moved
to  dismiss the Georges state court custody action.  The  Georges
did  not  have  prior  notice  of  the  tribal  council  adoption
proceedings.   The  superior court denied the  Starrs  motion  to
dismiss.   After a trial the superior court granted physical  and
legal  custody  of  the  children to the Georges  and  visitation
rights  to  the Starrs.  Because the Georges involvement  in  the
pending superior court proceedings entitled them to notice and an
opportunity to be heard in the adoption proceedings,  the  tribal
council  resolutions  are not entitled to enforcement  in  Alaska
state  courts.   We  therefore affirm the superior  courts  order
denying  the  motion  to dismiss and its  award  of  custody  and
visitation.
II.  FACTS AND PROCEEDINGS
          Denni  Starr  and  Richard Buddy George,  Jr.  had  two
daughters together, K.S., born in 1997, and S.G., born  in  2002.
On July 26, 2003, Denni Starr fatally stabbed Buddy George in the
presence  of  their  children.1  A jury  ultimately  found  Denni
guilty  of  second-degree  murder and reckless  endangerment  for
recklessly  creating a substantial risk of serious  harm  to  her
infant daughter, S.G., who was in her fathers arms at the time of
the  attack.2  The court sentenced her to thirty years for murder
and one year for reckless endangerment.3
          In  the meantime, the maternal grandparents, Dennis and
Delores Starr, filed for guardianship of the children in superior
court  in  Case No. 1JU-03-155 PR/G and Case No. 1JU-03-156  PR/G
(collectively referred to as 2003 guardianship cases); on  August
5,  2003,  the superior court appointed the Starrs as  guardians.
The  paternal grandparents, Richard and Barbara George, initially
consented  to the Starrs guardianships.  By order of  August  18,
2004, the superior court granted the Georges visitation rights in
the  guardianship cases.  In September 2004 the Georges  filed  a
motion  in  those  cases  to  enforce  their  visitation  rights,
claiming  the Starrs had denied the Georges visitation  with  the
children.  On September 27, 2004, the superior court ordered  the
Starrs to comply with the visitation order and set a hearing  for
November 1 to hear visitation issues.
          Denni  Starr,  the childrens mother, signed  an  Alaska
Bureau of Vital Statistics Parental Statement form on October  8,
2004  listing  both  K.S.  and S.G.  and  stating  that,  [these]
child[ren]  ha[ve]  been  adopted,  under  the  custom   of   the
child[ren]s tribe.  The form listed Dennis and Delores  Starr  as
the  adoptive  parents.  The Georges appear to have been  unaware
that Denni Starr had signed the Parental Statement form.
          Both  the  Starrs and the Georges participated  in  the
November  1,  2004  hearing  regarding  visitation  in  the  2003
guardianship  cases.  The Starrs testified at  the  hearing,  but
never   mentioned  the  possibility  of  any  other   proceedings
involving   the   children   apart  from   the   superior   court
guardianships.
          Also  on November 1, 2004, the Georges commenced a  new
          superior court action, Case No. 1JU-04-869 CI (2004 custody
case),  seeking custody of both children; they personally  served
the  Starrs with the petition.  The Georges sought custody on the
grounds the Starrs had removed K.S. and S.G. from Angoon and  had
allegedly  prevented the children from having  any  contact  with
relatives  on  the paternal side of the family.  On November  19,
2004, the Starrs answered and denied that they had prevented  the
Georges from exercising their visitation rights.
          On  February 26, 2005, the Starrs signed for each child
a  Request for Substitute Birth Certificate Following a  Cultural
Adoption  verifying that they were the adoptive parents  of  K.S.
and  S.G.  There is no indication, and the Starrs do not contend,
that  these  forms were served on or received by the  Georges  or
that  the Georges were aware of them before September 2005,  when
the Starrs filed a motion to dismiss in the 2004 custody case.
          On  May 17, 2005, the Georges filed a motion for summer
visitation  in the 2004 custody case.  The superior  courts  June
17,  2005 order awarded summer visitation to the Georges  in  the
custody case.
          On June 30, 2005, the parties local tribal council, the
Angoon  Community Association (ACA), approved resolutions stating
that  it has recognized the Starrs adoptions of the two children.
The  ACA  also  issued  Tribal Statements affirming  each  childs
adoption and stating that the tribe has not been informed of  any
person or agency other than the adoptive parents who is asserting
claim to custody under state or tribal law.  These statements are
dated  June  30,  2005.   It is unclear whether  the  resolutions
which  were prepared on Alaska Bureau of Vital Statistics  forms4
were  recognitions  of  tribal adoptions  that  had  taken  place
previously or were themselves the council enactments that  sought
to approve the Starrs tribal adoption petitions.

          There is no evidence the Starrs or the ACA provided the
Georges formal notice or an opportunity to be heard in the tribal
council proceedings.
          On  July 5, 2005, the Alaska Bureau of Vital Statistics
issued new birth certificates for K.S. and S.G. naming the Starrs
as parents.
          On  September 1, 2005, the Starrs moved to dismiss  the
Georges  2004 custody case, arguing that the adoptions terminated
the  legal relationship between the Georges and the children  and
that  the  Georges no longer possessed standing  in  the  custody
action.   The  Georges opposed the motion, arguing  that  because
they  did  not  receive notice prior to the adoption resolutions,
the adoption resolutions were not entitled to comity.5

          

               The  superior  court denied the Starrs  motion  to
dismiss.   The court concluded that the Indian Child Welfare  Act
(ICWA)6  which requires courts to extend full faith and credit to
tribal court decisions involving child custody proceedings7   did
not  apply.  The court reasoned that the custody dispute did  not
raise either of the concerns ICWA seeks to address8 and that  the
               rationale for ICWAs divorce exception9 justified applying that
exception  to  a  custody dispute between grandparents  when  the
parents are no longer available.
          The  superior court therefore concluded that the tribal
adoptions  were not subject to full faith and credit, but  rather
were  subject to the principle of comity  a principle under which
it is easier to attack the parallel judgments of foreign (in this
case, tribal) courts.10  The superior court further concluded that
the  tribal  adoptions were not entitled to  comity  because  the
Georges had not been given notice and an opportunity to be  heard
in  violation  of their due process rights.  The  superior  court
therefore denied the Starrs motion to dismiss the Georges custody
proceeding.
          The  superior court then conducted a two-day  trial  in
the custody case, and issued findings of facts and conclusions of
law.   The court found that it was in the childrens best interest
for  the Georges to be awarded physical and legal custody because
they  were most willing and able to facilitate and encourage  the
children  to have a close and continuing relationship with  their
mothers  parents  and  family.  The  court  granted  the  Georges
physical  and legal custody of the girls and granted  the  Starrs
visitation rights.
          The Starrs appeal the denial of their motion to dismiss
on  the  ground the tribal adoptions were entitled to full  faith
and  credit.11   Denni Starr joins her parents  arguments  as  an
appellee.

     III. DISCUSSION
     A.   Standard of Review
          The  parties  agree that all of the  issues  on  appeal
present questions of law.  We review rulings on questions of  law
de  novo,  adopting the rule of law most persuasive in  light  of
precedent,  reason,  and  policy.12   We  apply  our  independent
judgment  to  decide legal questions such as  the  scope  of  the
tribal  courts  subject matter jurisdiction and  the  meaning  of
federal  statutes.13  When construing statutes  that  affect  the
rights  of Native Americans, we liberally construe these statutes
and resolve ambiguities in favor of Native Americans.14
     B.   Whether ICWAs Divorce Exception Applies Here
          
          ICWA  applies in a child custody proceeding15 involving
an Indian child.16  ICWAs provisions, including the requirement to
grant  full  faith and credit to judicial proceedings  of  Indian
tribes, apply only to child custody proceedings involving  Indian
children.17  Custody awards to one parent in a divorce proceeding
are specifically excepted by ICWAs so-called divorce exception.18
          In  John  v.  Baker  (John I) we extended  the  divorce
exception to exclude from ICWAs coverage custody disputes between
unmarried  parents.19  We noted that the dual goals of  ICWA   to
protect the best interests of Indian children and to promote  the
stability  and  security of Indian tribes and families   are  not
implicated  in  custody  disputes  between  unmarried  parents.20
Regardless  of  the  outcome,  in  a  dispute  between  unmarried
parents, the child would continue to be raised in the home  of  a
          Native parent and in a Native village; thus, ICWAs exclusive
jurisdiction and procedural guidelines are unnecessary to protect
the familys or the tribes interests in those situations.21
          The superior court used this reasoning to conclude that
the   divorce  exception  applies  to  custody  disputes  between
grandparents when the parents are unavailable.
          We  conclude, however, that the divorce exception  does
not  extend to custody disputes between grandparents.  In  A.B.M.
v.  M.H. we held that ICWA does not have an exception for custody
disputes within the extended family.22  We further noted  that  a
grandparent   is  an  extended  family  member.23   Although   we
recognized that, upon adoption by members of the childs  extended
family,  application  of ICWA was not required  to  preserve  the
childs  ties  to Indian cultural or social values, we  could  not
justify creating a judicial exception on this basis alone.24   It
was error to create such an exception here.
          The  divorce  exception  guarantees  that  parents  can
always  litigate in state court their paramount parental  rights.
In  comparison,  persons who do not have rights as  paramount  as
those  of parents are necessarily subject to ICWA (assuming  ICWA
applies).   We  next  address whether, as the Starrs  argue,  the
tribal resolutions are entitled to full faith and credit.
     C.   Whether  the  Tribal Resolutions Are Entitled  to  Full
          Faith and Credit
          For  purposes of discussion, we assume without deciding
that  the tribal council adoption proceedings were child  custody
proceedings   within  the  meaning  of  ICWA.25    Despite   that
assumption, we determine that the tribal resolutions in this case
are not entitled to comity or full faith and credit; therefore it
is  irrelevant  whether  the comity  or  full  faith  and  credit
standard  applies because the tribal resolutions do not meet  the
threshold for either standard.
          ICWA  requires  the state to give the  same  credit  to
tribal court judgments it gives to the judgments of the courts of
sister  states.26  When determining whether to accord full  faith
and credit to a judgment of the court of a sister state, we first
decide  whether the issuing court had personal and subject matter
jurisdiction  when  it entered its judgment.27   Full  faith  and
credit  also  requires that the issuing court afford the  parties
due  process  and render its judgment in accordance with  federal
and  state constitutional standards.28  We turn first to the  due
process  issue  because it turns out to be  controlling  in  this
case.
          The  Starrs  argue  that due process was  not  violated
because  the Georges were not entitled to due process rights  and
notice  to  them was therefore not required.  The Starrs  contend
that  Judge  Weeks decision assumes, without actually  addressing
it, that the paternal grandparents took the position of their son
when  he  died,  and  that they are therefore  entitled  to  such
notice.  The Starrs assert that this assumption was error because
[n]othing  in  the laws supports such a conclusion.   The  Starrs
additionally  argue  that an extant guardianship  case  does  not
prohibit  adoption because custody and adoption are two different
types of proceedings.
          In  response,  the  Georges argue  that  [l]egally  and
logically,   they  were  interested  parties  in   the   adoption
proceedings.  In support, the Georges point to the 2004  superior
court   order  granting  them  visitation  rights  in  the   2003
guardianship  cases and the June 2005 order issued  in  the  2004
custody  case formally recognizing the standing of both  sets  of
grandparents to assert custody claims under AS 25.20.070.
          We  agree  with  the Georges.  It is unclear  when  the
tribal  court proceedings began.  At some point the Starrs sought
permission from the ACA to adopt the children, but we do not know
when  this  occurred.  The Starrs motion to dismiss  states  only
that  [s]hortly  after  Den[ni] Starrs conviction  in  September,
2004,  defendants Dennis and Delores Starr petitioned the  Angoon
tribal  authority to adopt the minor children.  The Starrs  brief
on  appeal  states, without citing to a dated document confirming
the  assertion,  that  they  filed  the  petition  [s]ometime  in
approximately September or October 2004.
          But  around that time, on November 1, 2004, the  Starrs
testified in a visitation hearing in the 2003 guardianship cases.
As  previously mentioned, at no point during the hearing did  the
Starrs  tell  the  superior  court  that  there  were  any  other
proceedings involving the children apart from the superior  court
proceedings.
          Similarly, AS 25.30.380(a)(2) requires that each party,
in  its first pleading . . . must state whether the party .  .  .
knows  of  a proceeding that could affect the current proceeding,
including a proceeding for enforcement and a proceeding  relating
to  .  .  .  termination of parental rights, and adoptions.   The
Georges  November 1, 2004 custody petition, filed in the superior
court  in the 2004 custody case and served on the Starrs, alleged
that  there was no pending action regarding the children  in  any
court,  including tribal court, other than the 2003  guardianship
cases  still  pending  before  the superior  court.   The  Starrs
November  19,  2004  answer did not mention  any  tribal  council
proceedings and did not deny the truth of the Georges  assertion.
The Starrs answer in the custody case is therefore deemed to have
admitted  that  there was no other proceeding  dealing  with  the
children,  apart from the 2003 superior court guardianship  cases
that were still pending.29
          Furthermore,  the  Starrs  September  2005  motion   to
dismiss the 2004 custody case states that [t]he matter was  taken
up  by  the Angoon Community Association . . . on June 30,  2005.
We  therefore conclude that the tribal council first adopted  the
resolutions on June 30, 2005.
          This  means  that there were three open superior  court
proceedings (the two 2003 guardianship cases and the 2004 custody
case)   in   existence  before  the  tribal  court  adopted   the
resolutions.  The Georges were interested parties in the adoption
proceedings  both because of their status as petitioners  in  the
2004  custody case and because they were holders of court-ordered
visitation  rights in the 2003 guardianship cases.   The  parties
appeared in state court litigating custody and visitation  issues
before the tribe considered the Starrs adoption petition.   As  a
result of the 2003 guardianship cases  and particularly the entry
          of the August 2004 order granting visitation rights to the
Georges   and  the November 1, 2004 commencement of the  petition
for  custody  in  which  the Starrs were personally  served,  the
Starrs  knew that the Georges had been granted visitation  rights
by  court order, and were seeking custody.  Their involvement  in
the  state court proceedings entitled the Georges to due  process
in the tribal court proceedings.
          We  next  consider whether the tribal court proceedings
satisfied  due process.  As an initial matter, we note  that  the
Georges had the burden of proving a due process violation.30   We
have previously noted that it is presumed the decisions of tribal
courts are sound31 unless the challenging party can show that the
foreign judgment was constitutionally infirm.32
          In  John I, we stated in dictum that comity should  not
be  granted to tribal judgments if due process was denied.33   We
also  noted  there  that,  [i]n  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.34  In Evans v. Native Village  of  Selawik  IRA
Council  we  refused  to  afford  comity  to  a  tribal  adoption
resolution  after  concluding that a lack of notice  violated  an
unwed fathers due process rights.35
          We   conclude  that  failure  to  give  notice  and  an
opportunity to be heard violates due process requirements under a
full  faith  and  credit standard as well.  Even  if  the  tribal
councils adoption orders warrant a full faith and credit analysis
under  1911(d), [t]he statute does not require the state court to
give absolute deference to a tribal court order regardless of the
circumstances.36  As we previously stated:
          The  requirement of full faith and credit  is
          to  be  read and interpreted in the light  of
          well-established   principles   of   justice,
          protected  by other constitutional provisions
          which  it  was  never intended to  modify  or
          override. . . . [N]o state may obtain, in the
          tribunals of another jurisdiction, full faith
          and credit for a judgment which is based upon
          an unconstitutional law, or is rendered in  a
          proceeding  wanting  in due  process  of  law
          enjoined by the fundamental law. Indeed,  due
          process  requires that no other  jurisdiction
          shall  give  effect,  even  as  a  matter  of
          comity,  to  a  judgment  elsewhere  acquired
          without due process.[37]
          
          ICWA  requires  the state to give the  same  credit  to
tribal court judgments it gives to the judgments of the courts of
sister states.38  We therefore look to the federal Full Faith and
Credit  Clause39  and the implementing federal  statute,40  which
require  the state to give full faith and credit to the judgments
of  the  courts  of  sister states, for guidance  in  determining
whether  the  tribal  court  resolutions  meet  the  requirements
          entitling them to full faith and credit under ICWA.
          In  analyzing the federal Full Faith and Credit  Clause
and   1738,  the United States Supreme Court said that [a]  State
may  not  grant  preclusive  effect  in  its  own  courts  to   a
constitutionally  infirm judgment, and other  state  and  federal
courts are not required to accord full faith and credit to such a
judgment.41  The Court also stated that a court proceeding need do
no  more than satisfy the minimum procedural requirements of  the
Fourteenth Amendments Due Process Clause in order to qualify  for
. . . full faith and credit under  1738.42
          Here  the tribal adoption proceedings did not meet  the
minimum  procedural requirements of due process.   An  elementary
and  fundamental  requirement of due process  in  any  proceeding
which is to be accorded finality is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to  present
their  objections.43   We  have also noted  that  notice  and  an
opportunity  to  be heard are essential elements of  due  process
under  the  Alaska Constitution.44  Compliance with  due  process
requirements  is particularly important in cases involving  child
custody and the termination of parental rights.45
          As  the  Starrs  correctly point out, [t]ribal  courts,
quite   obviously,  do  things  differently  than  state  courts.
Indeed,  tribal courts need not provide due process in the  exact
manner  as  state  courts.46  The proceedings must,  however,  be
addressed  to  the  issues involved in a meaningful  fashion  and
pursuant to adequate notice.47
          Lack  of  notice  is a recognized exception[]  to  full
faith   and  credit.48   A  judgment  rendered  without  judicial
jurisdiction  or without adequate notice or adequate  opportunity
to be heard will not be recognized or enforced in other states.49
Other  states  have declined to extend full faith and  credit  to
sister  state judgments under 28 U.S.C.  1738 for procedural  due
process violations based on lack of notice.50  We likewise decline
to  extend  full  faith and credit to the Starrs tribal  adoption
order  under  25 U.S.C.  1911(d) for the procedural  due  process
violation here.
          It is unclear when the Starrs began the tribal adoption
proceedings but it is undisputed that the Georges were not  given
formal  notice or an opportunity to be heard at any  time  before
the  ACA issued the resolutions.51  The Starrs do not contest the
superior  court finding that the Starrs did not give the  Georges
formal  notice  of  the adoptions until the  Starrs  filed  their
motion  to  dismiss  on  September 1,  2005.   The  tribal  court
adoption proceedings therefore failed to comply with the  minimal
requirements  of  due process.  Because the Georges  due  process
rights  were  violated, the tribal adoptions are not entitled  to
full faith and credit.
          The  Starrs  also  contend that if we decide  that  the
Georges  should  have been given notice, we  must  remand  for  a
factual  determination whether the Georges had actual  notice  in
advance  of  the tribal adoptions.  The Georges affidavits  state
that  [a]t  no  time before June, 2005 did [they] receive  notice
from  anyone  that Angoon Community Association was  reviewing  a
          petition for tribal adoption of [their] granddaughters.  As far
as we can tell, the tribal adoption resolutions were not approved
until June 30, 2005.  The record does not establish or imply that
the  Georges  learned about the proceedings before  the  adoption
resolutions  were  approved.   Regardless,  the  Starrs  do   not
challenge  the  Georges  assertion that they  learned  about  the
adoptions by word of mouth.  Because, as other courts have noted,52
such  an  informal  method  does not satisfy  the  constitutional
notice requirements of due process, it is irrelevant whether  the
Georges had actual advance notice.
          The  Starrs additionally argue that the superior  court
did  not  adequately  consider the availability  of  [c]orrective
[m]easures  by  the  tribal  court.  The  Starrs  are  apparently
suggesting  that  the  superior court  should  have  delayed  the
custody  trial  to allow the tribal council to provide  appellate
review  of  the tribal adoption proceeding.  Although the  Starrs
motion to dismiss did not ask the superior court for this relief,
the Starrs contend that they cannot have waived certain rights by
not  bringing  them up at the trial level because  parties  under
ICWA cannot simply waive rights, because ICWA is mandatory.   But
appellate  review  in  the tribal court system  is  not  a  right
mandated by ICWA, and it is hard to imagine what right the Starrs
might have had to tribal court appellate review considering  that
they  prevailed in the adoption proceedings.  Indeed, the Georges
were  not even parties.  The Starrs have not waived a right, they
have  merely  waived an argument.  Because the Starrs  failed  to
adequately  raise  the  argument  below,  the  Starrs  have   not
preserved  their corrective measures argument.  We  therefore  do
not need to address it.53
          D.   Whether  the  Wishes of the Tribal  Court  Can  Be
               Heard
          Our  decision  today  does not, as  the  Starrs  imply,
dictate that the wishes of the tribal court cannot be heard.  The
award of custody to the Georges and visitation to the Starrs made
by  the  superior court on June 22, 2006, does not accomplish  an
adoption  and is not necessarily a permanent grant of custody  to
the Georges.  The Angoon Community Association may move for leave
to  intervene  per  ICWA if there are future disputes  concerning
custody,   or  if  it  shows  other  sufficient  circumstances.54
Likewise, the Starrs may seek a change of custody, or visitation,
should there be a change of circumstances.
IV.  CONCLUSION
          Because  their involvement as litigants and  recipients
of visitation orders in prior proceedings entitled the Georges to
notice  and  an  opportunity to be heard in the  tribal  adoption
proceedings,  the  tribal resolutions are not  entitled  to  full
faith and credit in Alaska state courts.  We therefore AFFIRM the
judgment below.
_______________________________
     1     Starr  v. State, Mem. Op. & J. No. 5166 at  1  (Alaska
App., Jan. 31, 2007), 2007 WL 293072.

     2    Id.

     3    Id.

     4     The  Tribal Resolution forms issued by the  Bureau  of
Vital  Statistics were revised in March 2006 and now  state  that
they are not for use with tribal court adoption.

     5    Each of the Georges filed an affidavit that identically
stated:

          At  no  time before June, 2005 did I  receive
          notice  from  anyone  that  Angoon  Community
          Association  was  reviewing  a  petition  for
          tribal  adoption  of  my granddaughters;  The
          first  I  heard about the ACA tribal adoption
          was  by word of mouth here in Angoon in June;
          I  never received any written or oral  notice
          that  a  petition for adoption was  filed  or
          being considered.
          
          In  their  accompanying memorandum, the Georges  argued
that:

          In  June,  [they]  learned  that  the  Angoon
          Community Association . . . tribal court  had
          issued  a  resolution granting Mr.  and  Mrs.
          Starrs  request for cultural adoption.   This
          was  the first notice either had received  of
          the      tribal      adoption     proceeding.
          Documentation of such tribal adoption was not
          provided  until  the Motion  to  Dismiss  was
          filed September 1, 2005.
          
     6     Indian  Child  Welfare Act (ICWA) of 1978,  25  U.S.C.
1901 et seq. (2006).

     7    25 U.S.C.  1911(d).

     8     See  John  v.  Baker (John I), 982  P.2d  738,  746-47
(Alaska 1999) (noting that Congress stated that the statutes dual
purpose was to protect the best interests of Indian children  and
to  promote  the  stability and security  of  Indian  tribes  and
families.  (quoting 25 U.S.C.  1902)).

     9    Id. at 747.  Congress excepted divorce proceedings from
ICWAs  coverage because, regardless of the outcome of  a  custody
dispute between two Native parents, the child would remain with a
Native  parent  and  in  the  Native village.   Therefore,  ICWAs
procedural safeguards are unnecessary to protect the interests of
the family or the tribe.  Id.; see also H.R. Rep. No. 95-1386, at
31  (1978), reprinted in U.S.C.C.A.N. 7530, 7554 (We believe that
the   protections  provided  by  this  act  are  not  needed   in
proceedings between parents.).

     10     See, e.g., Robert Laurence, The Convergence of Cross-
Boundary Enforcement Theories in American Indian Law: An  Attempt
to  Reconcile  Full  Faith and Credit, Comity and  Asymmetry,  18
Quinnipiac  L.  Rev. 115, 125-26 (1998) (noting  that  once  full
faith  and  credit principles are found to apply,  the  receiving
court is very restricted in the kinds of collateral attacks  that
it  is allowed to entertain and recognizing that [c]omity is less
restrictive a doctrine than full faith and credit).

     11     There  is no indication that a separate document  was
entered amounting to a final judgment in the custody case.  Civil
Rule  58 provides in pertinent part: Every judgment must  be  set
forth  on a separate document distinct from any findings of fact,
conclusions of law, opinion, or memorandum.  The Georges  do  not
argue  that  there  is no appealable final  judgment.   Had  that
argument been made after the appeal was commenced, we could have,
as  an  exercise of discretion, chosen to treat the appeal  as  a
petition for review.  Alaska R. App. P. 402; see Municipality  of
Anchorage v. Anderson, 37 P.3d 420, 421 n.5 (Alaska 2001) (noting
that  appeal  improperly brought may be treated as  petition  for
review,  but  review will be granted only where the sound  policy
behind  the  rule requiring appeals to be taken only  from  final
judgments  is outweighed); Bradley v. Bradley, 32 P.3d  372,  372
(Alaska  2001)  (granting review of appeal of  nonfinal  judgment
authorizing writ of execution).

     12    J.S. v. State, 50 P.3d 388, 391 (Alaska 2002) (citation
omitted)  (applying independent review to superior court decision
holding  that  ICWA  does not require active efforts  to  reunify
father  with  sons  after he was convicted  of  sexually  abusing
them).

     13    John I, 982 P.2d at 744.

     14     Id.  at 752 (citing Bryan v. Itasca County, 426  U.S.
373, 392 (1976)).

     15    25 U.S.C.  1903(1).

     16     25  U.S.C.  1903(4).  The children are Tlingit.   The
parties  do  not  dispute that the children are  Indian  children
within the meaning of ICWA.

     17    25 U.S.C.  1911(d).

     18    25 U.S.C.  1903(1).

     19    John I, 982 P.2d at 747.

     20    Id. at 746-47.

     21    Id.

     22    A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982).

     23    Id. (citing 25 U.S.C.  1903(2) (Supp. 1981)).

     24    Id.

     25      ICWA   applies  only  to  specified  child   custody
proceedings,   which  are  limited  to  foster  care   placement,
termination  of  parental  rights,  preadoptive  placement,   and
adoptive  placement.  Felix S. Cohen, Cohens Handbook of  Federal
Indian  Law   11.02[3], at 828 (Nell J. Newton et al. eds.,  2005
ed.)  (citing  25 U.S.C.  1903(1)).  The state court  proceedings
initiated  by the Starrs and by the Georges were arguably  foster
care  placement proceedings within the meaning of ICWA since they
involved  removing an Indian child from its parent for  placement
in  the  home of a guardian where the parent could not  have  the
child returned upon demand.  See  1903(1)(i).  But subsection (i)
refers  to temporary placement.  This condition arguably was  not
satisfied by the state court proceedings since the custody sought
did  not  purport  to  be  temporary.   The  grant  of  exclusive
jurisdiction to an Indian tribe under  1911(a) of ICWA  does  not
apply  to  this  case because the children did not  reside  on  a
reservation.   Although an adoption proceeding  is  within  ICWAs
definition  of  a child custody proceeding, adoption  proceedings
initiated  in  state court cannot be transferred to tribes  under
1911(b).   We  do not decide here whether tribes have independent
jurisdiction  over adoption proceedings such that their  adoption
proceedings  are child custody proceedings to which  states  must
give full faith and credit under  1911(d).

     26    25 U.S.C.  1911(d).

     27    Wall v. Stinson, 983 P.2d 736, 737 (Alaska 1999).

     28     State, Dept of Pub. Safety v. Fann, 864 P.2d 533, 536
n.5 (Alaska 1993).

     29    See Alaska R. Civ. P. 8(d) (Averments in a pleading to
which  a responsive pleading is required . . . are admitted  when
not denied in the responsive pleading.).

     30     John v. Baker (John II), 30 P.3d 68, 72 (Alaska 2001)
(determining that party challenging validity of foreign  judgment
has burden of proof).

     31    Id.

     32    Fann, 864 P.2d at 536.

     33    John I, 982 P.2d at 762-64.

     34    Id. at 763.

     35     Evans v. Native Vill. of Selawik IRA Council, 65 P.3d
58, 59-60 (Alaska 2003).

     36     In  re Adoption of T.R.M., 525 N.E.2d 298, 306  (Ind.
1998)  (noting  that, although  1911(d) requires state  court  to
give  full faith and credit to tribal proceedings to same  extent
state  court  gives  full faith and credit  to  orders  of  other
entities, all foreign judgments remain open to collateral  attack
for constitutional infirmities).

     37     Fann,  864 P.2d at 536 n.5 (quoting 47  Am.  Jur.  2d
Judgments  1221 (1969)).

     38    25 U.S.C.  1911(d).

     39    U.S. Const. art. IV,  1.

     40      28   U.S.C.   1738  (2006)  ([J]udicial  proceedings
.  .  .  shall have the same full faith and credit in every court
within  the United States and its Territories and Possessions  as
they  have by law or usage in the courts of such State, Territory
or  Possession  from  which they are taken.).   Congress  enacted
1738  to  implement the Full Faith and Credit  Clause.   Magnolia
Petroleum Co. v. Hunt, 320 U.S. 430, 437 (1943).

     41     Kremer  v.  Chem. Constr. Corp., 456  U.S.  461,  482
(1982).

     42    Id. at 481.

     43     Aguchak  v. Montgomery Ward Co., 520 P.2d 1352,  1356
(Alaska 1974) (quoting Mullane v. Cent. Hanover Bank & Trust Co.,
339  U.S.  306, 314-15 (1950)) (adopting the Mullane due  process
standard  for constitutionally effective notice under the  Alaska
Constitution).

     44    Evans, 65 P.3d at 60 (citing City of N. Pole v. Zabek,
934  P.2d  1292, 1297 (Alaska 1997); Walker v. Walker,  960  P.2d
620, 622 (Alaska 1998)).

     45    See Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska
1998) (In a child custody proceeding, the parties are entitled to
a hearing that grants them the opportunity to present the quantum
of   evidence   needed  to  make  an  informed   and   principled
determination.) (citation and internal quotations  omitted);  see
also  In  re K.L.J., 813 P.2d 276, 279 (Alaska 1991) (recognizing
that  the  interest  of  a parent whose parental  rights  may  be
terminated via an adoption petition is of the highest magnitude).

     46     See  Crowe v. E. Band of Cherokee Indians, Inc.,  506
F.2d   1231,  1236  n.14  (4th  Cir.  1974)  (noting  that  [t]he
proceedings of the Council need not, of course, be conducted with
all of the trappings of a court of law).

     47    Id.; see also Indian Civil Rights Act, 25 U.S.C.  1302
(2006)  (No Indian tribes in exercising powers of self-government
shall . . . deprive any person of liberty or property without due
process  of  law. . . .); 2004 Formal Op. Atty Gen.  No.  661-04-
0467, 2004 WL 2337177, at *12 (October 1, 2004):

          [T]he  state will defer to such tribal  court
          orders    only   if   the   tribe   exercised
          jurisdiction  in  a  manner  consistent  with
          ICWA,  the tribe afforded due process to  the
          litigants in the tribal court (including  the
          opportunity to contest jurisdiction), and the
          tribal  court  otherwise acted  in  a  manner
          consistent    with    the    United    States
          Constitution . . . .
          
     48     Hall  v.  McCormick, 580 A.2d 968, 969-70 (Vt.  1990)
(recognizing  lack of notice exception to full faith  and  credit
but  ultimately finding no denial of due process where  defendant
had notice of proceeding and chose to appear by counsel).

     49    Restatement (Second) Conflict of Laws  104 (1971).

     50    See, e.g., Bastian v. Tuttle, 606 S.W.2d 808 (Mo. App.
1980)  (declining  to extend full faith and  credit  to  judgment
where publication notice was constitutionally insufficient to put
on  notice  former resident who left the state intending  not  to
return);  Keating  v.  Keating, 855 A.2d  80  (Pa.  Super.  2004)
(refusing to afford full faith and credit to divorce decree where
wife  had  no  notice or opportunity to be heard in Guam  divorce
proceeding);  R.R. Gable, Inc. v. Burrows, 649  P.2d  177  (Wash.
App.  1982)  (holding  that California default  judgment  is  not
entitled  to full faith and credit in Washington where defendants
were  not  given notice or opportunity to be heard in  California
proceeding).

     51     The  superior court order stated, The  Georges  first
notice of the adoption proceeding was June 5, 2005  the date  the
tribal court issued a resolution granting the Starrs request  for
cultural adoption.  The June 5 date appears to be incorrect;  the
tribal  resolutions  state  that the meeting  was  held  and  the
resolutions were approved on June 30.

     52     See Mennonite Bd. of Missions v. Adams, 462 U.S. 791,
798  (1983) (determining that constructive notice alone does  not
satisfy  the  mandate of Mullane) (citing Mullane,  339  U.S.  at
317);  see also Patterson v. City of Utica, 370 F.3d 322,  334-36
(2d Cir. 2004) (holding that city violated plaintiffs due process
rights  by not giving plaintiff official notice of meeting  which
would  serve  as  name-clearing  hearing  even  though  plaintiff
learned  of  meeting  through word  of  mouth  and  attended  and
participated in hearing); Edwards v. Edwards, 801 P.2d  782,  788
(Or.  1990)  (holding that, even assuming that in  some  word-of-
mouth  fashion  defendant received actual notice, defendants  due
process  rights were violated when plaintiff served defendant  by
leaving  summons  in office of lawyer employed  by  defendant  on
other matters).

     53     State Farm Mut. Auto. Ins. Co. v. Lawrence,  26  P.3d
1074,  1077-78  (Alaska 2001) (refusing to address  argument  not
adequately raised at trial level).

     54    25 U.S.C.  1911(c).

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