Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Native Village of Tanana (3/4/2011) sp-6542

State v. Native Village of Tanana (3/4/2011) sp-6542, 249 P3d 734

        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,   email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

STATE OF ALASKA, JOEL                            ) 
GILBERTSON in his official capacity              ) 
as Alaska Commissioner of Health &               ) 
Social Services, MARCIA KENNAI, in               ) 
her official capacity as Deputy                  ) 
Commissioner of the Office of Children's  	 ) 
Services, PHILLIP MITCHELL, in his               ) 
official capacity as Chief of the Alaska         ) 
Bureau of Vital Statistics, and GREGG            ) 
RENKES, in his official capacity as              ) 
Attorney General,                                ) 
                                                 )    Supreme Court No. S-13332 
                       Appellants,               ) 
                                                 )    Superior Court No. 3AN-04-12194 CI 
        v.                                       ) 
                                                 )    O P I N I O N 
NATIVE VILLAGE OF TANANA,                        ) 
DAN SCHWIETERT, THERESA                          )   No. 6542 - March 4, 2011 
SCHWIETERT, NULATO VILLAGE,                      ) 
VILLAGE OF KALSKAG, AKIAK                        ) 
NATIVE COMMUNITY, VILLAGE OF                     )
LOWER KALSKAG, and KENAITZE                      )
INDIAN TRIBE,                                    )
                                                 )
                       Appellees.                )
                                                 )
 

               Appeal from the Superior Court of the State of Alaska, Third 
               Judicial District, Anchorage, John Suddock and Sen K. Tan, 
               Judges. 

               Appearances:       Peter K. Putzier, Assistant Attorney General, 
               Anchorage, Talis J. Colberg, Attorney General, Juneau, for 

----------------------- Page 2-----------------------

                Appellants. Heather Kendall-Miller, Native American Rights 
                Fund,   Anchorage,   Lloyd   B.   Miller,   Sonosky,   Chambers, 
                Sachse,     Miller   &   Munson,     LLP,    Anchorage,     and   Andy 
                Harrington, Alaska Legal Services Corporation, Fairbanks, 
                for Appellees. 

                Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen, 
                Justices.   [Stowers, Justice, not participating.] 

                WINFREE, Justice. 

I.      INTRODUCTION 

                In this case we revisit ripeness and tribal sovereignty decisions intersecting 

in   a   dispute   between   the   State   of   Alaska   and   a   number   of   Alaska   Native   tribes. 

Procedurally, we are asked whether the narrowed view of ripeness announced in Brause 
v. State, Department of Health & Social Services1 and recently applied in State v. ACLU 

of Alaska2 requires dismissal of this case without reaching its merits.  Substantively, we 

are   asked   (1)   whether   the   inherent   sovereign   jurisdiction   of   Alaska   Native   tribes 
recognized over a decade ago in John v. Baker3 includes the initiation of "child custody 

proceedings" as that term is used in the Indian Child Welfare Act (ICWA), and (2) if so, 

whether tribal court judgments in those proceedings are entitled to full faith and credit 

by the State. 

                We conclude that this dispute is ripe for a limited decision, acknowledging 

that further refinements and qualifications must arise from future adjudications based on 

specific factual scenarios.  Today we decide that (1) federally recognized Alaska Native 

tribes are not necessarily precluded from exercising inherent sovereign jurisdiction to 

        1       21 P.3d 357 (Alaska 2001). 

        2       204 P.3d 364 (Alaska 2009). 

        3       982 P.2d 738 (Alaska 1999). 

                                                  -2                                               6542 

----------------------- Page 3-----------------------

initiate "child custody proceedings" as ICWA defines that term, and (2) judgments issued 

in those proceedings may be entitled to full faith and credit by the State under ICWA. 

But lack of specific facts precludes us from defining the extent of any individual Alaska 

Native tribe's inherent sovereign jurisdiction to initiate "child custody proceedings" or 

the standards for determining which judgments would be entitled to full faith and credit 

by the State. 

II.     PROCEEDINGS 

                Native Village of Tanana (Tanana), Nulato Village (Nulato), Akiak Native 

Community (Akiak), Village of Kalskag (Kalskag), Village of Lower Kalskag (Lower 

Kalskag), and Kenaitze Indian Tribe (Kenaitze) are recognized as Indian tribes by the 
United States Department of the Interior,4 and all but Kenaitze are listed as "Alaska 

Native villages" under the Alaska Native Claims Settlement Act (ANCSA).5                       In this 

opinion, we refer to the tribal appellees collectively as "the Tribes."6 

                The   Tanana   Tribal   Court,   the   Nulato   Tribal   Council,   and   the   Kenaitze 

Tribal Court all hear children's proceedings initiated by their tribes or transferred from 

state court, and they issue decrees establishing protection, guardianship, and custody of 

        4       Indian   Entities   Recognized   and   Eligible  to   Receive   Services   from   the 

United States Bureau of Indian Affairs, 58 Fed. Reg. 54,364, 54,368-69 (Oct. 21, 1993) 
(listing federally recognized tribes); Indian Entities Recognized and Eligible to Receive 
Services from the United States Bureau of Indian Affairs, 68 Fed. Reg. 68,180, 68,183-84 
(Dec. 5, 2003) (same). 

        5       43 U.S.C.  1602(c), 1610(b) (2000). 

        6       The individual appellees, Dan and Theresa Schwietert, adopted a special- 

needs Alaska Native child through the Tanana Tribal Court in June 2004 and received 
a birth certificate from the State. Although plaintiffs below, the Schwieterts participated 
in the litigation in a collateral supporting role to the Tribes, and the final judgment does 
not mention the Schwieterts. 

                                                  -3-                                            6542
 

----------------------- Page 4-----------------------

children.7     Akiak's   Quanerceraarviat   Tribal   Court   hears   children's   cases,   including 

tribally initiated child protection cases, and issues orders and adoption decrees.                The 

Kalskag Traditional Council initiates child protection proceedings.  The Lower Kalskag 

Tribal Court hears matters involving allegations of child abuse or neglect. 
                In late October 2004 the Tribes8 sued the State of Alaska and - in their 

official capacities - the Attorney General andheads of the Office of Children's Services 

(OCS), Bureau of Vital Statistics (BVS), and Department of Health and Social Services 

(DHSS), collectively "the State."   The Tribes alleged that based on an October 1, 2004 

opinion   letter   from   then-Attorney   General   Gregg   Renkes   (2004  Attorney   General 

Opinion), the State adopted a policy and began taking official action to interfere with 

tribal rights under ICWA and to deny full faith and credit to tribal adoption decrees and 

orders issued in tribally initiated child protection cases.  The Tribes sought declaratory 

relief recognizing that Alaska Native tribes "possess inherent and concurrent jurisdiction 

to adjudicate children's proceedings and issue tribal court decrees" and injunctive relief 

forcing "the [S]tate and its agencies to grant full faith and credit to tribal court decrees 

as required by law." 

                In late December 2004 the State moved to dismiss the suit on ripeness 

grounds.   In response the Tribes moved for leave to file an amended complaint in early 

January 2005, which the State opposed on ripeness and futility grounds.               The superior 

court   granted   the   Tribes'   motion   in   early   March   2005   and   accepted   the   amended 

        7       ICWA defines "tribal court" in relevant part as "a court with jurisdiction 

over child custody proceedings and which is . . . established and operated under the code 
or custom of an Indian tribe, or any other administrative body of a tribe which is vested 
with authority over child custody proceedings."  25 U.S.C.  1903(12) (2000). 

        8       The original five plaintiff tribes were Tanana, Nulato, Kalskag, Akiak, and 

Lower Kalskag.   The Tribes amended their complaint twice to add plaintiffs: first to add 
the Schweiterts and second to add Kenaitze. 

                                                 -4-                                            6542
 

----------------------- Page 5-----------------------

complaint. After oral argument Superior Court Judge John Suddock subsequently denied 

the State's dismissal motion from the bench, stating in part: 

                 [A]s the pleading[] says, the tribal courts are behaving as if 
                 they have original jurisdiction in these matters.             They are 
                 actually   adjudicating   them   and   they   are   placing   children 
                 based on them and the [S]tate is here saying . . . ["]that's 
                 void. Those courts are [a] nullity. Any of those parents could 
                 go get those children back and not be in violation of a binding 
                 court order because it's void ab initio.["]            Strikes me that 
                 that's a bad situation, that there is a very ripe question for a 
                 review:   whether or not the Attorney General ever put pencil 
                 to paper . . . there is a network of tribal courts out there that 
                 has   assumed   a   jurisdiction   beyond   .   .   .   what   the   [S]tate 
                 contends   is   proper.     Ordinary   citizens   are   being   affected. 
                 Children are being affected. It seems to me that there is a ripe 
                 question for declaratory judgment. 

                 In November 2005 the Tribes moved for partial summary judgment on the 

legal   issue   of  Alaska   Native   tribes'   "inherent   sovereign   authority   .   .   .   to   adjudicate 

children's proceedings."          The State opposed the Tribes' motion and cross-moved for 

summary        judgment,     arguing    that  the   2004  Attorney      General     Opinion     accurately 

interpreted existing Alaska case law and that the Tribes "do not possess the inherent 

authority to initiate child protection cases." 

                 Superior Court Judge Sen K. Tan granted the Tribes' motion for partial 

summary judgment in May 2007, ruling that "tribes retain concurrent jurisdiction to 

legislate, to initiate, and to adjudicate [child in need of aid] cases in tribal courts."  Upon 

the State's urging that the partial summary judgment granted the Tribes all the relief 

requested in their amended complaint, Judge Tan issued a final judgment on August 26, 

2008. 

                 The relevant language from the declaratory judgment portion of the final 

judgment is as follows: 

                                                    -5-                                              6542
 

----------------------- Page 6-----------------------

                1.      [The Tribes] possess inherent [sovereign] jurisdiction 
                to initiate child custody proceedings. . . . The [Tribes] share 
                concurrent jurisdiction with the State . . . over child custody 
                proceedings as the term is defined by the ICWA[,] 25 U.S.C. 
                 1903. 

                2.      [The   Tribes]  are   entitled   to   access   .   .   .   confidential 
                reports   and   other   documents   in   the   possession   of   [OCS] 
                concerning their member children. 

                3.      [The Tribes] are entitled to full faith and credit under 
                25 U.S.C.  1911(d) for their public acts, records, and judicial 
                proceedings to the same extent that the State . . . gives full 
                faith   and   credit   to   the   public   acts,   records[,]   and   judicial 
                proceedings of any other [s]tate. 

                The final judgment also enjoined the State from: (1) implementing the 2004 

Attorney General Opinion by adopting policies or regulations; (2) relying on, enforcing, 

or carrying out any mandate based on the 2004 Attorney General Opinion that is contrary 

to   the  superior    court's   decision;   (3) denying      full  faith  and  credit   to  the  Tribes' 

determinations in ICWA-defined child custody proceedings; (4) refusing to notify the 

Tribes of reports of harm and provide such reports of harm for investigation; and (5) 

denying the Tribes information they otherwise are entitled to receive under ICWA. 

                The State appeals. 

III.    STANDARD OF REVIEW 
                We evaluate de novo the issue of ripeness.9  We evaluate de novo the scope 

of tribal jurisdiction and the meaning of federal statutes.10   Under de novo review, we 

        9       ACLU of Alaska, 204 P.3d at 367-68 (clarifying standard of review and 

rejecting abuse of discretion standard suggested in earlier decisions). 

        10      John v. Baker, 982 P.2d at 744. 

                                                   -6-                                               6542 

----------------------- Page 7-----------------------

apply "the rule of law that is most persuasive in light of precedent, reason, and policy."11 

IV.     DISCUSSION 

                Today's decision requires a review of: ICWA; Alaska and federal decisions 

regarding     Alaska     Native    tribal  sovereignty     over   ICWA-defined        "child   custody 

proceedings"; John v. Baker; and the State's reaction toJohn v. Baker both prior to and 

after October 1, 2004.      This backdrop provides the necessary context for us to address 

both the procedural ripeness and substantive sovereignty questions before us. 

        A.      ICWA And Relevant Authorities 

                1.      Relevant ICWA provisions 

                In 1978 Congress enacted ICWA with the goal of: 

                protect[ing]   the   best   interests   of   Indian   children   and   .   .   . 
                promot[ing] the stability and security of Indian tribes and 
                families by the establishment of minimum Federal standards 
                for the removal of Indian children from their families and the 
                placement of such children in foster or adoptive homes which 
                will   reflect   the   unique   values of   Indian   culture,   and   by 
                providing for assistance to Indian tribes in the operation of 
                child and family service programs.[12] 

Congress found "that there is no resource . . . more vital to the continued existence and 
integrity of Indian tribes than their children"13 and "that an alarmingly high percentage 

        11      Glamann   v.   Kirk,   29   P.3d   255,   259   (Alaska   2001)   (quoting Philbin   v. 

Matanuska-Susitna Borough, 991 P.2d 1263, 1266 (Alaska 1999)). 

        12      Indian Child Welfare Act, Pub. L. No. 95-608,  3, 92 Stat. 3069 (1978) 

(codified at 25 U.S.C.  1902 (2000)); accord A.B.M. v. M.H., 651 P.2d 1170, 1172 
(Alaska 1982). 

        13      25 U.S.C.  1901(3) (2000); see also John v. Baker, 982 P.2d at 747 ("[T]he 

statute 'seeks to protect the rights of the Indian child as an Indian and the rights of the 
Indian community and tribe in retaining its children in its society.' " (quoting H.R. Rep. 
No. 95-1386, at 23 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7546)). 

                                                  -7-                                            6542
 

----------------------- Page 8-----------------------

of Indian families are broken up by the removal, often unwarranted, of their children 

from   them   by   nontribal   public   and   private   agencies   and   that   an   alarmingly   high 

percentage of such children are placed in non-Indian foster and adoptive homes and 
institutions."14     Congress      further   found    that  when    "exercising     their  recognized 

jurisdiction over Indian child custody proceedings" states "have often failed to recognize 
the essential tribal relations of Indian people and [their] cultural and social standards."15 

                In   short,   ICWA   "constructs   a   statutory   scheme   to   prevent   states   from 
improperly removing Indian children from their parents, extended families, and tribes."16 

"Its most important procedural elements include establishing tribal courts as the required 
or preferred forum for adjudication of Indian child custody proceedings."17  The United 

States Supreme Court declared over 20 years ago that "Congress was concerned with the 

rights   of   Indian   families   and   Indian   communities   vis-à-vis   state   authorities.  More 

specifically, [ICWA's] purpose was, in part, to make clear that in certain situations the 
state courts did not have jurisdiction over child custody proceedings."18 

                ICWA  1911, titled "Indian tribe jurisdiction over Indian child custody 

        14      25 U.S.C.  1901(4); accord John v. Baker, 982 P.2d at 746. 

        15      25 U.S.C.  1901(5). 

        16      COHEN'S HANDBOOK OF FEDERAL INDIAN LAW  11.01[1], at 820 (Nell 

Jessup Newton ed., 2005 ed.) (hereinafter COHEN'S HANDBOOK). 

        17      CONFERENCE OF W.ATT'YS GEN.,AMERICAN INDIAN LAW DESKBOOK 571 

(4th ed. 2008) (hereinafter INDIAN LAW DESKBOOK); see also B.J. JONES, MARK TILDEN 
&KELLY GAINES-STONER,THE INDIAN CHILD WELFAREACTHANDBOOK 5 (2d ed. 2008) 
(hereinafter   ICWA HANDBOOK)   (identifying   one   of   ICWA's   primary   objectives   as 
"encourag[ing] tribal court adjudication of child custody proceedings involving Indian 
children"). 

        18      Miss.   Band   of   Choctaw   Indians   v.   Holyfield,   490   U.S.   30,   45   (1989) 

(emphasis in original) (footnote omitted). 

                                                  -8-                                            6542
 

----------------------- Page 9-----------------------

proceedings," limits state jurisdiction over ICWA-defined child custody proceedings in 
two ways.19     First,  1911(a) provides that Indian tribes have exclusive jurisdiction of 

child custody proceedings involving Indian children residing or domiciled in Indian 
country, unless federal law otherwise vests jurisdiction in the state.20  Tribes also retain 

exclusive   jurisdiction   over   tribal   court   wards regardless   of   residence   or   domicile.21 

        19      25    U.S.C.      1911    (2000).      For   ICWA's      purposes,    "child   custody 

proceeding" means and includes foster care placements, actions to terminate parental 
rights, preadoptive placements, and adoptive placements.  25 U.S.C.  1903(1).   ICWA 
generally does not apply to divorce or divorce-like child custody proceedings.  See id.; 
John v. Baker, 982 P.2d at 746-47; INDIAN LAW DESKBOOK, note 17, above, at 574-75; 
ICWA HANDBOOK, note 17, above, at 27-28. 

        20      "Indian child" means "any unmarried person who is under age eighteen and 

is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian 
tribe and is the biological child of a member of an Indian tribe."             25 U.S.C.  1903(4). 

                An "Indian tribe" is "any Indian tribe . . . recognized as eligible for the 
services provided to Indians by the [Secretary of the Interior]," including "any Alaska 
Native village" defined in 43 U.S.C.  1602(c) of ANCSA.  Id.  1903(8), (11). 

                The term "reservation" in ICWA means, in pertinent part, "Indian country" 
as defined in 18 U.S.C.  1151.         25 U.S.C.  1903(10).       "Indian country" is defined as 
"(a) all lands within the limits of any Indian reservation . . . , (b) all dependent Indian 
communities within the borders of the United States . . . , and (c) all Indian allotments, 
the Indian titles to which have not been extinguished."  18 U.S.C.  1151 (2000). 

        21      25 U.S.C.  1911(a).   Although "ward" is not defined in ICWA, 

                and there is very little guidance in the legislative history or 
                [Bureau of Indian Affairs] guidelines as to its import[,] . . . 
                [t]he most commonly accepted understanding of wardship is 
                that when a tribal court, or a tribal governing council, has 
                exercised   legitimate   jurisdiction   over   an   Indian   child   in   a 
                child    custody    proceeding     and   continues    to  exercise   that 
                jurisdiction,     a  state   court's   exercise    of   jurisdiction   is 
                precluded, except, of course, on an emergency basis. 
                                                                                         (continued...) 

                                                   -9-                                               6542 

----------------------- Page 10-----------------------

Second,  1911(b) provides that state courts must transfer foster care placement and 

parental     right  termination     proceedings     involving    Indian   children    not  residing    or 

domiciled   within   Indian   country   to   tribal   courts   upon   petition,   except   in   specific 
circumstances.22 

                ICWA  1918(a) provides that "[a]ny Indian tribe which became subject to 

[s]tate jurisdiction pursuant to the provisions of . . . any . . . [f]ederal law, may reassume 
jurisdiction over child custody proceedings."23           To reassume jurisdiction, a tribe must 

petition    the  Secretary    of  the   Interior  and   provide    a  suitable   plan   for  exercising 
jurisdiction.24 

                ICWA  1911(d) provides that states "shall give full faith and credit to the 

public acts, records, and judicial proceedings of any Indian tribe applicable to Indian 

        21      (...continued) 

ICWA HANDBOOK, note 17, above, at 58 (footnote omitted). 

        22      25   U.S.C.      1911(b).    Section   1911(b)   "creates   three   checks   on   tribal 

transfer   jurisdiction":     (1)   either   parent's   objection;   (2)   the   tribe's   declination   of 
jurisdiction; and (3) the state court's finding of good cause to deny transfer. In re C.R.H., 
29 P.3d 849, 853 (Alaska 2001); see generally ICWA HANDBOOK, note 17, above, at 59 
69. ICWA does not address tribes' power to receive adoptive or preadoptive cases, "nor 
is there much discussion of this apparent discrepancy in case law."  Id. at 60. 

        23      25 U.S.C.  1918(a) (2000). 

        24      25 U.S.C.  1903(11), 1918(a).   Of Alaska's approximately 230 federally 

recognized tribes, only two have successfully petitioned to reassume jurisdiction: Native 
Village of Barrow and Native Village of Chevak both reassumed exclusive jurisdiction 
over child custody proceedings involving member children residing or domiciled within 
their respective villages by petition in 1999.  Approval of Petition for Reassumption of 
Exclusive Jurisdiction for Native Village of Chevak, 64 Fed. Reg. 36,391 (July 6, 1999); 
Approval of Petition for Reassumption of Exclusive Jurisdiction for Native Village of 
Barrow, 64 Fed. Reg. 36,391 (July 6, 1999); Indian Entities Recognized and Eligible to 
Receive Services from the United States Bureau of Indian Affairs, 73 Fed. Reg. 18,553, 
 18,556-57 (Apr. 4, 2008). 

                                                  -10-                                            6542
 

----------------------- Page 11-----------------------

child custody proceedings to the same extent that such entities give full faith and credit 
to the public acts, records, and judicial proceedings of any other entity."25 

                 2.	     Early   Alaska   precedent   regarding   ICWA   and   Alaska   Native 
                         tribal sovereignty 

                 In our 1986 decision Native Village of Nenana v. State, Department of 

Health & Social Services, we held that Public Law 280 (P.L. 280) divested Alaska Native 
tribes of any jurisdiction under ICWA  1911(a) and (b).26              Nenana concerned a superior 

court's denial of Native Village of Nenana's petition for transfer of a child protection 
proceeding to itsjurisdiction.27       Because ICWA  1918(a) specifically mentions P.L. 280 

as a federal law that extends state jurisdiction over some Indian tribes, we concluded that 

"Congress intended that [P.L.] 280 give certain states, including Alaska, exclusive [rather 

than concurrent] jurisdiction over matters involving the custody of Indian children, and 

that those states exercise such jurisdiction until a particular tribe petitions to reassume 
jurisdiction . . . and the Secretary of the Interior approves [the] tribe's petition."28               We 

also noted that  1911(b) transfer jurisdiction "may actually grant Indian tribes greater 

authority than they had prior to the Act" because "[r]egardless of whether [P.L.] 280 

vests exclusive or concurrent jurisdiction in the applicable states, prior to [ICWA], 

Indian tribes may not have had jurisdiction over custody proceedings . . . where the child 

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

         26      722 P.2d 219, 221 (Alaska 1986).   Provisions of P.L. 280 give enumerated 

states   both   criminal   and   civil   jurisdiction   in   Indian   country,   with   the   exception   of 
specified reservations.  Act of Aug. 15, 1953, Pub. L. No. 83-280,  2, 4, 67 Stat. 588, 
588-89 (codified at 18 U.S.C.  1162 (2000) and 28 U.S.C.  1360 (2000), respectively). 
Alaska has been enumerated as a state under P.L. 280 since 1958.  Act of Aug. 8, 1958, 
Pub. L. No. 85-615, 72 Stat. 545. 

         27      722 P.2d at 220. 

         28      Id. at 221. 

                                                   -11-	                                             6542
 

----------------------- Page 12-----------------------

was domiciled off the reservation."29 

                In 198730 and again in 199231 we confirmed Nenana's holding that Alaska 

Native tribes could not exercise jurisdiction under ICWA  1911(a) or (b) until they had 

successfully petitioned for reassumption. 

                Our 1987 decision In re K.E. concerned the superior court's denial of a 

tribe's request for  1911(b) transfer of a parental rights termination proceeding from 
state court to tribal court.32  The tribe argued it had exclusive  1911(a) jurisdiction based 

on   the   child's   domicile   "within   the   dependent   [I]ndian   community   of   Nenana,"33  a 

reference to "Indian country."34   We recognized Nenana as "controlling authority" and 

held that regardless of whether an Indian child resides or is domiciled in Indian country, 

the   tribe  must    successfully    petition   to  reassume    jurisdiction    over   child  custody 
proceedings before it can exercise  1911(a) or  1911(b) jurisdiction.35 

                Our 1992 decisionIn re F.P. concerned tribal jurisdiction under  1911(a).36 

After DHSS took emergency protective custody of three Indian children, Native Village 

of Circle unsuccessfully argued to the superior court that the state court               proceeding 

should be dismissed in light of the tribe's exclusive  1911(a) jurisdiction over the 

        29      Id. (emphasis in original).
 

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

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

        32      744 P.2d at 1173.
 

        33      Id. at 1174. 

        34      See note 20, above. 

        35      In re K.E., 744 P.2d at 1174-75. 

        36      See 843 P.2d at 1215 (noting tribe claimed exclusive jurisdiction). 

                                                 -12-                                           6542
 

----------------------- Page 13-----------------------

children as tribal court wards.37   On appeal Circle asked us to review Nenana and K.E. 

in light of then-recent Ninth Circuit Court of Appeals cases, particularly one in which the 

Ninth Circuit   concluded that if the two Alaska Native villages involved "were 'modern 

day successors to sovereign historical bands of [N]atives,' " then those villages had 

concurrent jurisdiction in child custody matters because they were "entitled to 'the same 

rights   and   responsibilities   as   .   .   .   sovereign  bands  of  [N]ative  Americans     in  the 
continental United States.' "38  We concluded the Ninth Circuit opinion was contrary to 

our prior holding that "Congress intended that most Alaska Native groups not be treated 
as sovereigns" and held that F.P. was controlled by Nenana.39   We reiterated Nenana's 

holding that ICWA  1918(a) indicated Congress intended P.L. 280 to give Alaska and 

certain other states exclusive and not concurrent jurisdiction over matters involving 

custody      of  Indian    children,    unless   tribes   successfully     petitioned    to  reassume 
jurisdiction.40   Chief Justice Rabinowitz was persuaded by the Ninth Circuit's analysis 

and dissented, asserting that Nenana and K.E. should be overruled because P.L. 280 is 

not a divestiture statute, but rather an extension of states' jurisdiction to be exercised 
concurrently with tribes.41 

                3.      Federal precedent regarding ICWA and Alaska Native tribal 

        37      Id.; Brief of Appellee at 2,In re F.P., 843 P.2d 1214   (No. S-04742), 1991 

WL 11666111, at *2. 

        38      In re F.P., 843 P.2d at 1215 (quotingNative Vill. of Venetie I.R.A. Council 

v. Alaska (Venetie), 944 F.2d 548, 558-59 (9th Cir. 1991)). 

        39      Id. (quoting Native Vill. of Stevens v. Alaska Mgmt. & Planning, 757 P.2d 

32, 34 (Alaska 1988)). 

        40      Id. at 1215-16. 

        41      Id. at 1216, 1218-19 (Rabinowitz, C.J., dissenting) (quoting  Venetie, 944 

F.2d at 560-62). 

                                                 -13-                                            6542
 

----------------------- Page 14-----------------------

                        sovereignty 

                As we observed in F.P., Ninth Circuit case law has held that Alaska Native 

tribes   can   have   inherent   sovereign   jurisdiction   concurrent   with   the   State   in   ICWA- 
defined child custody matters.42         The 1991 decision Native Village of Venetie I.R.A. 

Council v. Alaska concerned the State's refusal to recognize two adoption decrees issued 
by   Native   Villages   of   Venetie   and   Fort   Yukon.43    The   Ninth   Circuit   analyzed   two 

substantive   issues   in   resolving   the   dispute:     "whether   the   [N]ative   [V]illages   are 

inherently sovereign, at least insofar as domestic relations or child-custody issues are 

concerned"; and, if so, "whether Congress has stripped the [V]illages of that aspect of 
sovereign authority which encompasses child-custody determinations."44  As to inherent 

sovereignty, the Ninth Circuit determined "to the extent that Alaska's [N]atives formed 

bodies politic to govern domestic relations, to punish wrongdoers, and otherwise to 

provide   for   the   general   welfare,"   then   "modern-day   successors  to   [those]  sovereign 

historical bands of [N]atives . . . are to be afforded the same rights and responsibilities 
as are sovereign bands of [N]ative Americans in the continental United States."45                 As to 

whether   Congress   stripped   Alaska   Native   tribes   of   their   inherent   sovereignty   over 

domestic relations and child-custody issues, the Ninth Circuit rejected the divestiture 

interpretation of P.L. 280 and held neither ICWA nor P.L. 280 "prevent[ed] [sovereign 
Alaska Native villages] from exercising concurrent jurisdiction."46 

                The Ninth Circuit directed that if on remand the district court determined 

        42      Venetie, 944 F.2d at 558-59, cited in In re F.P., 843 P.2d at 1215. 

        43      Id. at 550-51. 

        44      Id. at 556. 

        45      Id. at 558-59. 

        46      Id. at 559-62. 

                                                  -14-                                            6542
 

----------------------- Page 15-----------------------

either Native Village was "the modern-day successor[] to an historical sovereign band 

of [N]ative Americans," then the State of Alaska must afford "full faith and credit to 
adoption   decrees   issued   by   [that   Native   Village's]   tribal   courts."47    On   remand   the 

District Court for the District of Alaska determined that Venetie was "a sovereign tribe 

as a matter of law" exercising adoption authority over its members, and accordingly that 

"the State of Alaska must afford full faith and credit to adoption decrees issued by [its] 

         47      Id. at 562. The Ninth Circuit recently relied on Venetie's holding inKaltag 

Tribal Council v. Jackson, an unpublished opinion.   344 Fed. Appx. 324 (9th Cir. 2009), 
cert. denied, 131 S. Ct. 66 (2010). There the Ninth Circuit relied on Venetie in affirming 
that under ICWA  1911(d) the State must accord full faith and credit to an adoption 
decree issued by the Native Village of Kaltag's tribal court.                  Id. at 325.     The Ninth 
Circuit stated that "[r]eservation status is not a requirement of jurisdiction because '[a] 
[t]ribe's authority over its reservation or Indian country is incidental to its authority over 
its members.' "  Id. (quoting Venetie, 944 F.2d at 559 n.12).                The Ninth Circuit further 
held that "neither the ICWA nor [P.L.] 280 prevented the Kaltag court from exercising 
jurisdiction."    Id. 

                 Even more recently, the District Court for the District of Alaska treated 
 Venetie as persuasive authority.          In S.P. v. Native Village of Minto, the district court 
concluded   P.L.   280   did   not   divest   Native   Village   of   Minto's   concurrent   inherent 
sovereign jurisdiction to make a former village resident's child a tribal court ward and 
to terminate the parents' rights.          No. 3:09-cv-0092-HRH, slip op. at 4-5, 12, 14 (D. 
Alaska Dec. 2, 2009) ("The Native Village of Minto has never petitioned the Secretary 
to reassume exclusive jurisdiction over Indian child custody proceedings; but the fact that 
the Native Village . . . does not have exclusive jurisdiction over child custody matters of 
Indian children who are wards of the tribe does not preclude concurrent jurisdiction with 
the [S]tate.").  The district court relied on Venetie and the Kaltag Tribal Council district 
court order in reaching this conclusion. Id. at 12-14 (discussing Venetie, 944 F.2d at 550, 
555-56, 561-62; Kaltag Tribal Council v. Jackson, No. 3:06-cv-0211-TMB, slip op. at 
 10-11 (D. Alaska Feb. 22, 2008)). The district court expressly rejected the argument that 
tribal courts cannot initiate child custody proceedings as ICWA uses that term. Id. at 14 
 16 (relying in part onKaltag Tribal Council, No. 3:06-cv-0211-TMB, at 7-8).   Based in 
part   on   its   jurisdiction   ruling,   the   district   court   ultimately   dismissed   the   case   on 
abstention grounds.  Id. at 16-18. 

                                                   -15-                                              6542
 

----------------------- Page 16-----------------------

tribal   courts."48   According   to   a   subsequent   Ninth   Circuit   opinion,   the   State   "later 

stipulated that Fort Yukon could also meet the requirements for tribal status."49 

        B.      John v. Baker And Its Aftermath 

                1.      John v. Baker 

                In our September 1999 John v. Baker decision, issued when Nenana, F.P., 

andK.E. still controlled, we recognized concurrent inherent tribal jurisdiction outside the 

confines of Indian country to adjudicatenon-ICWA child custody disputes between tribal 
members.50     In John v. Baker a Northway Village member unsuccessfully sought sole 

custody of his children in the Northway Tribal Court before bringing an identical custody 
suit in superior court.51    The children's mother moved to dismiss the superior court case 

based on the tribal court proceeding, but the superior court awarded the father primary 
custody of the children.52     In an amicus brief filed in the ensuing appeal, the State urged 

us to hold that "Alaska tribes retained concurrent jurisdiction with the [S]tate over civil 

matters involving the domestic relations of their members" even after the enactment of 
P.L. 280.53   The State expressed an interest in "cooperat[ing] more closely with tribes, 

avoiding duplicative programs and stretching . . . combined resources further than . . . 

        48      Native Vill. of Venetie I.R.A. Council v. Alaska, Nos. F86-0075 CIV (HRH) 

& F87-0051 CIV (HRH), 1994 WL 730893, at *21-22 (D. Alaska Dec. 23, 1994). 

        49      Native Vill. of Venetie I.R.A. Council v. Alaska, 155 F.3d 1150, 1151 (9th 

Cir. 1998). 

        50      John v. Baker, 982 P.2d at 748-49, 759. 

        51      Id. at 743.   The children's mother was a member of Mentasta Village, but 

consented to the Northway Tribal Court's jurisdiction.  Id. 

        52      Id. 

        53      Amicus Brief of the State of Alaska at 45, John v. Baker, 982 P.2d 738 (No. 

S-8099), 1998 WL 35180190, at *45. 

                                                  -16-                                            6542
 

----------------------- Page 17-----------------------

could [be] manage[d] separately, particularly in the under-served regions of Alaska."54 

                 We   examined   the   Department   of   the   Interior's   1993   list   of   federally 

recognized   tribes,   which   "included   Northway   Village   and   most   of   the   other   Native 

villages in Alaska," and the list's preamble that the "villages and regional tribes listed 

. . . have the same governmental status as other federally acknowledged Indian tribes by 

virtue of their status as Indian tribes with a government-to-government relationship with 
the United States."55     We also looked to the Federally Recognized Tribe List Act of 1994, 

which   directs   the   Department   to   publish   annual   lists   of   tribes   eligible   for   special 
programs and services because of their status as Indians,56 and to the recognition in that 

act's   text   and   legislative   history   of   these   tribes'   "sovereignty,"57   "quasi-sovereign 

status,"58 and "government-to-government relationship [with] the United States . . . as . . . 

domestic dependent nation[s]."59           We noted the Department lists published for 1995 

through 1998 all included Alaska Native villages such as Northway.60                     In deference to 

recognition   by   Congress   and   the   Executive   Branch   that   particular   Native   American 

groups are sovereign tribes, we recognized that "Alaska Native tribes, by virtue of their 

        54      Id. at 1. 

        55      John v. Baker, 982 P.2d at 749-50 (emphasis omitted) (citing and quoting 

Indian Entities Recognized and Eligible to Receive Services from the United States 
Bureau of Indian Affairs, 58 Fed. Reg. at 54,365-66). 

        56      Id. at 750 (citing 25 U.S.C.  479a, 479a-1). 

        57      Id. (citing Pub. L. No. 103-454,  103, 108 Stat. 4791 (1994) (codified at 

25 U.S.C.  479a note (2000)). 

        58      Id.   (quoting   H.R.   Rep.   No.   103-781,   at   2-3   (1994),  reprinted   in   1994 

U.S.C.C.A.N. 3768, 3769). 

        59      Id. (quoting H.R. Rep. No. 103-781, at 2). 

        60      Id. 

                                                   -17-                                              6542
 

----------------------- Page 18-----------------------

inherent powers as sovereign nations," possess "inherent, non-territorial sovereignty 
allowing them to resolve domestic disputes between their own members."61   Because 

"villages     like  Northway      presumably     do    not   occupy    Indian    country,"    we    held 

"Northway's jurisdiction to adjudicate child custody disputes between village members" 
was concurrent with that of state courts.62 

                Although ANCSA extinguished all aboriginal title and claims to Alaska 

land and revoked all existing Indian reservations except for that of the Metlakatla Indian 
Community on the Annette Islands,63 we held that ANCSA's elimination of nearly all 

Indian country in Alaska did not divest Alaska Native villages of their sovereign powers 
to adjudicate child custody disputes between village members.64                  We employed "the 

established   principle   under   federal   law  that   'Indian   tribes   retain   those   fundamental 

attributes of sovereignty . . . which have not been divested by Congress or by necessary 
implication of the tribe's dependent status.' "65         We then noted that "internal functions 

involving tribal membership and domestic affairs" are within the "core set of sovereign 
powers that remain intact even though Indian nations are dependent under federal law."66 

        61      Id. at 748-49. 

        62      Id. at 759. 

        63      Id. at 747-48 & n.43 (citing 18 U.S.C.  1151; Alaska v. Native Vill. of 

Venetie Tribal Gov't, 522 U.S. 520, 530-33 (1998)). 

        64      Id. at 748-59. 

        65      Id. at 751 (quoting Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 146 

(1982)). 

        66      Id.  (citing Montana v. United States, 450 U.S. 544, 564 (1981);  United 

States v. Wheeler, 435 U.S. 313, 326 (1978),superseded on other grounds by Act of Nov. 
5, 1990, Pub. L. No. 101-511,  8077(b)-(d), 104 Stat. 1856, 1892-93 and Act of Oct. 28, 
                                                                                        (continued...) 

                                                 -18-                                               6542 

----------------------- Page 19-----------------------

We acknowledged that "the character of the power that the tribe seeks to exercise, not 

merely     the  location  of   events,"  determines   "whether   tribes   retain   their   sovereign 
powers."67    We determined that ANCSA did not "express any intent to force Alaska 

Natives to abandon their sovereignty," particularly "their powers to adjudicate domestic 
disputes between members,"68 and that post-ANCSA congressional actions, including 

passage of ICWA seven years later, indicated Congress did not intend ANCSA to prevent 
Alaska Natives from continuing to regulate their internal affairs.69   We concluded that 

"federal tribes derive the power to adjudicate internal domestic matters, including child 

custody disputes over tribal children, from a source of sovereignty independent of the 
land they occupy."70 

                Because   we   concluded   that   neither   ICWA   nor   P.L.   280   applied,71  we 

        66      (...continued)
 

1991, Pub. L. No. 102-137,  1, 105 Stat. 646).
 

        67     Id. at 752. 

        68     Id. at 753. 

        69     Id. at 753-54 (discussing Federally Recognized Tribe List Act of 1994; 

ICWA; and Indian Tribal Justice Act of  1993, Pub. L. No. 103-176, 107 Stat. 2004 
(codified at 25 U.S.C.  3601-31). 

        70     Id. at 754; see also id. at 748-49. 

        71      We   held   ICWA   did   not   apply   because   child   custody   disputes   between 

parents fall under ICWA's divorce exception, even if the parents never married.  Id. at 
746-47; see note 19, above. 

                We held rulings interpreting P.L. 280 did not apply because P.L. 280's text 
states that it applies only to Indian country and because Northway Village, like most 
Alaska Native land, ceased to qualify for the "dependent Indian community" definition 
of Indian country after ANCSA extinquished most Indian country in Alaska.                   John v. 
Baker, 982 P.2d at 747-48 (quoting 18 U.S.C.  1151 and citing Native Vill. of Venetie 
                                                                                     (continued...) 

                                                -19-                                             6542 

----------------------- Page 20-----------------------

determined it was "neither necessary nor appropriate . . . to reach the question of whether 
Nenana       and   its   progeny   were   wrongly   decided."72        Although   we   recognized   that 

"generally, Indian nations possess greater powers in Indian country than they do outside 

it" and that we would "create[] a disjunction in Indian law jurisprudence" by recognizing 

that Northway had greater powers outside Indian country than the tribal community 

inside Alaska's only reservation, we concluded "this inconsistency d[id] not create a 
justification to address issues . . . not squarely before us."73 

                 Chief Justice Matthews, joined by Justice Compton, dissented, concluding 

that "inherent tribal jurisdiction over custody applies only to cases arising within Indian 
country."74    Chief Justice Matthews looked to what he termed the "allocative principle"75 

and Nenana and F.P. in concluding that "if Alaska has exclusive jurisdiction to decide 

private custody cases which arise in Indian country, it has, by necessary implication, 

exclusive   jurisdiction   to   decide   private   custody   cases   which   arise   outside   of   Indian 
country."76 

         71      (...continued)
 

Tribal Gov't, 522 U.S. at 530-33).
 

         72      Id. at 748. 

         73      Id. at 748 n.46. 

         74      Id. at 766 (Matthews, C.J., dissenting). 

         75      The   chief   justice   explained   that   under   the   allocative   principle,   unless 

Congress   clearly   provides   otherwise,   (1)   state   laws   generally   do   not   apply   to   tribal 
Indians within Indian country and (2) tribal authority does not apply outside of Indian 
country.  Id. at 772 (citing Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 465 
(1995)). 

         76      Id. at 767-68 (citing In re F.P., 843 P.2d at 1215-16; Nenana, 722 P.2d at 

221).      Chief   Justice   Matthews   determined   the   United   States   Supreme   Court   used 
                                                                                            (continued...) 

                                                    -20-                                                 6542 

----------------------- Page 21-----------------------

                 2.      The State's initial position after John v. Baker; In re C.R.H. 

                 In September 2000, then-Governor Tony Knowles issued an administrative 

 order "acknowledg[ing] the legal and political existence of the federally recognized 
 [t]ribes within the boundaries of Alaska."77       In addition to expressing "recogni[tion] and 

 respect[]" for the tribes' "governmental status," the governor articulated a policy of 

 "acknowledg[ing] any additional [t]ribes in Alaska that may be recognized by the federal 

         76      (...continued) 

 language indicating that P.L. 280 gave certain states full jurisdiction over Indian country 
 to the exclusion of tribal jurisdiction.  Id. at 808-09 (discussing California v. Cabazon 
Band of Mission Indians, 480 U.S. 202, 208 (1987); Solem v. Bartlett, 465 U.S. 463, 465 
 n.2 (1984);  Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 
 439 U.S. 463, 475, 488-89 n.32, 498 (1979); Bryan v. Itasca Cnty., 426 U.S. 373, 383 
 (1976);  Organized Vill. of Kake v. Egan, 369 U.S. 60, 74 (1962)).   He also determined 
 that the 1970 amendment to  2 of P.L. 280, which the House Report explained was 
 intended   to   "permit[]  the   Metlakatla   Indian   [C]ommunity   on   the   Annette   Islands   in 
 Alaska   to   exercise   jurisdiction   over   minor   offenses   concurrent   with   .   .   .   Alaska," 
 indicated that prior to 1970 the State exercised criminal jurisdiction exclusive of tribal 
jurisdiction in all Indian country in Alaska.        Id. at 808, 810 (quoting H.R. Rep. No. 91 
 1545 (1970), reprinted in 1970 U.S.C.C.A.N. 4783, 4783). The chief justice noted that 
 the 1970 amendment also added language to  2(c) of P.L. 280 referring to the  2(a) 
 areas   of   Indian   country    as  "areas   over   which    the  several   States   have  exclusive 
jurisdiction ."    Id. at 810 (emphasis added in dissenting opinion).               The chief justice 
 concluded that the amendment demonstrated the 91st Congress's belief that P.L. 280 
 granted states exclusive jurisdiction.  Id. at 810-11.   Based on parallel language in  2 
 and 4 of P.L. 280, the chief justice extended the divestiture determination to the civil 
 realm, stating "it is impossible to conclude that Congress intended to confer on the states 
 exclusive criminal jurisdiction, but only concurrent civil jurisdiction."  Id. at 810. 

         77     Administrative Order No. 186 (Sept. 29, 2000); see generally DAVID  S. 

 CASE &DAVID A.VOLUCK,ALASKANATIVES AND AMERICAN LAWS 430-31 & n.409 (2d 
 ed. 2002) (hereinafter CASE & VOLUCK) (describing Governor Knowles's actions and 
 noting change from former Governor Walter J. Hickel's Administrative Order No. 125 
 (Aug. 16, 1991), generally opposing tribal sovereignty expansion, which in turn had 
 overturned former Governor Steve Cowper's Administrative Order No. 123 (Sept. 10, 
 1990), recognizing existence of Alaska Native tribes). 

                                                  -21-                                            6542
 

----------------------- Page 22-----------------------

government in the future"78 and "foster[ing] a constructive and harmonious relationship 

between   the   [t]ribal   and   State   governments."79    He   acknowledged   the   value   of   the 

"services that Alaska's [t]ribes contribute to the state's economic and social well-being 

by virtue of their direct [t]ribal authority and responsibility for the delivery of social, 
economic, cultural, and other programs and services."80  The governor explained that in 

December 1999 he had invited Alaska Native tribes "to enter into a government-to 

government dialogue with the State for the purpose of establishing a framework for 
ongoing State-[t]ribal relations."81  In furtherance of the "promot[ion] and enhance[ment] 

[of] [t]ribal self-government . . . and social, cultural, spiritual, and racial diversity," 

among other things, Governor Knowles committed the State "to working with [t]ribes to 

further   strengthen   Alaska's   ability   to   meet   the   needs   of   Alaska's   communities   and 
families."82 

                In April 2001 Governor Knowles and various federally recognized Alaska 

Native tribes signed the Millennium Agreement, "a framework for the establishment of 

lasting government-to-government relationships and an implementation procedure to 

assure   that   such   relationships   are   constructive   and   meaningful   and   further   enhance 
cooperation between the parties."83        This agreement reflects the State's recognition that 

        78      Administrative Order No. 186. 

        79      Id. 

        80      Id. 

        81      Id. 

        82      Id. 

        83      Millennium Agreement between the Federally Recognized Sovereign Tribes 

of   Alaska   and   the   State   of   Alaska     2,   Apr.   11,   2001. Although   the   Millennium 
Agreement did not address substantive issues, id. at  10, ICWA authorizes agreements 
                                                                                        (continued...) 

                                                  -22-                                              6542 

----------------------- Page 23-----------------------

"[e]ach [signatory] [t]ribe has its own independent form of government and exercises 
inherent sovereign authority."84        In turn, the signatory tribes acknowledged that "[t]he 

State of Alaska has a major responsibility to provide for the health, safety, and welfare 
of all Alaskans."85 

                In August 2001, two years after our John v. Baker decision, we decided In 
re C.R.H.86    That case concerned the denial of a request by Native Village of Nikolai to 

transfer a child protection proceeding from superior court to tribal court.87   The State, 

while   defending   against   Native   Village   of   Nikolai's   appeal   in  C.R.H.,   urged   us   to 
overturn Nenana and its progeny.88           The State pointed to the conflict between (1) the 

Ninth Circuit's Venetie holding that some Alaska Native tribes have concurrent inherent 

authority over child protection matters affecting their members, undivested by P.L. 280, 

and (2) our Nenana holding that Alaska Native tribes may not assert jurisdiction over 

child protection matters unless they formally reassume jurisdiction over those matters 

        83      (...continued) 

between states and Indian tribes "respecting care and custody of Indian children and 
jurisdiction over child custody proceedings, including agreements . . . for orderly transfer 
of jurisdiction on a case-by-case basis and . . . for concurrent jurisdiction between States 
and Indian tribes." 25 U.S.C.  1919(a) (2000). 

        84      Millennium Agreement between the Federally Recognized Sovereign Tribes 

of Alaska and the State of Alaska, note 83, above, at  12(a). 

        85      Id. at  13(b). 

        86      29 P.3d 849 (Alaska 2001). 

        87      Id. at 850-51. 

        88      Appellee State of Alaska's Brief at 6, 41, In re C.R.H., 29 P.3d 849 (No. S 

9677). 

                                                  -23-                                            6542
 

----------------------- Page 24-----------------------

under   ICWA      1918(a)   because   they  were   divested   of   it   by   P.L.   280.89   The   State 

explained that it "felt compelled" to oppose the tribe's request for transfer because of 

Nenana and its progeny, but it was "in an untenable position" because Nenana  and 
Venetie were irreconcilable.90        The State argued in part that we should reexamine and 

overrule Nenana in light of John v. Baker 's holdings that Alaska's federally recognized 

tribes have " 'inherent power [to] regulat[e] their internal and social relations,' including 

adjudicatory authority over child custody matters" and that P.L. 280 did not divest that 
authority outside of Indian country.91 

                We compared ICWA  1911(a), which provides that tribes lack exclusive 

Indian country and wardship jurisdiction "where such jurisdiction is otherwise vested in 

the State by existing Federal law," with  1911(b), which does not contain a parallel 
limiting provision for transferjurisdiction.92  We concluded that "Congress intended P.L. 

280 to affect tribes' exclusive jurisdiction under subsection 1911(a), but did not intend 
P.L. 280 to affect transfer jurisdiction under subsection 1911(b)."93              We therefore held 

that federally recognized tribes in Alaska may accept transfer of ICWA cases under 

 1911(b) without formal reassumption of jurisdiction, and we overruled Nenana, F.P., 
and K.E. to the extent they were inconsistent with that holding.94  But having concluded 

that Congress gave tribes   1911(b) transfer jurisdiction regardless of their P.L. 280 

        89      Id. at 5.
 

        90      Id.
 

        91
     Id. at 13, 25 (quoting John v. Baker, 982 P.2d at 754-55). 

        92      In re C.R.H., 29 P.3d at 852. 

        93      Id. 

        94      Id. at 850-52. 

                                                  -24-                                             6542
 

----------------------- Page 25-----------------------

status, we found it unnecessary to reconsider whether Alaska Native tribes affected by 
P.L. 280 retained initiating jurisdiction under  1911(a) concurrent with the State.95 

                 DHSS   subsequently   requested   an   opinion   from   then-Attorney   General 
Bruce   Botelho   on  C.R.H.'s effect.96         In   the   responsive   memorandum,   the   Attorney 

General's   office   acknowledged   that   "no   tribe   in   Alaska   [could]   exercise   exclusive 

jurisdiction over its children based on either residency or domicile within the tribe's 

reservation"      because     the   only   tribe   occupying     a   reservation,    Metlakatla     Indian 
Community, exercises concurrentjurisdiction.97              The memorandum also acknowledged 

Native   Village   of   Barrow's   and   Native  Village   of   Chevak's   successful   petitions   to 
reassume exclusive jurisdiction over matters involving their children.98  As to Alaska's 

other tribes, the memorandum stated that before a child custody proceeding's initiation, 

a tribe and the State shared concurrent jurisdiction and either could take steps to protect 
a member child or membership-eligible child.99             The memorandum explained that a tribe 

could exercise exclusive jurisdiction over a child either by (1) initiating a tribal court 

proceeding regarding an Indian child not already within the State's custody and declaring 

         95      Id. at 852.   One early commentator noted that "[r]ead together with John v. 

Baker, C.R.H. confirms tribal concurrent ICWA jurisdiction as well." CASE & VOLUCK, 
note 77, above, at 430 n.406. 

         96      Memorandum from Assistant Att'y Gen. Donna Goldsmith for Jay Livey, 

Dep't of Health & Soc. Srvs. Comm'r (Mar. 29, 2002) (No. 441-00-0005) revoked by 
2004 FORMAL OP. ATT'Y GEN. 135. 

         97      Id.   at   3;  see   John   v.   Baker,   982   P.2d   at   748   n.43   (noting   Metlakatla 

Reservation on Annette Islands is Alaska's only post-ANSCA Indian reservation). 

         98      Memorandum From Assistant Att'y Gen. Donna Goldsmith, note 96, above, 

at 3. 

         99      Id. at 2. 

                                                   -25-                                              6542
 

----------------------- Page 26-----------------------

the child a tribal court ward or (2) receiving transfer of a case initiated in state court.100 

According to the memorandum, the State lacked authority to investigate a report of harm 

concerning an Indian child it knew was a tribal court ward, but the State could forward 
risk of harm information to the tribe.101       Finally, the memorandum advised DHSS that in 

addition to recognizing cultural adoptions under ICWA  1911(d), the State was required 

to "recognize tribal court adoption orders to the extent that it recognize[d] such orders 

from sister states and other foreign orders" because "C.R.H. removed all impediments 
that historically prevented [recognition of] tribal court adoptions."102 

                3.       The State's position after October 1, 2004 

                 On    October    1,  2004,    then-Attorney    General      Gregg    Renkes     issued   a 

direction-changing advisory opinion regarding tribal jurisdiction and ICWA-defined 
child custody proceedings.103       The 2004 Attorney General Opinion, based on C.R.H. and 

the Nenana remnants left in place after  C.R.H., and without acknowledging John v. 

Baker's implications, concluded that: 

                Alaska   state   courts   have   exclusive   jurisdiction   over   child 
                 custody proceedings involving Alaska Native children unless 
                 (1)   the    child's   tribe   has    successfully     petitioned     the 
                Department of Interior to reassume exclusive or concurrent 
                jurisdiction under the Indian Child Welfare Act (ICWA), 25 
                U.S.C.  1918 or (2) a state superior court has transferred 
                jurisdiction of the child's case to a tribal court in accordance 

        100     Id. at 2, 4 n.7.
 

        101     Id. at 4.
 

        102     Id. at 5.
 

        103     2004 FORMAL OP. ATT'Y GEN. 135.
 

                                                   -26-                                             6542
 

----------------------- Page 27-----------------------

                 with 25 U.S.C.  1911(b) and the tribal court is exercising its 
                jurisdiction.[104] 

                 OCS   then   revised   its   Policy   and   Procedure   Manual,   citing   the   2004 

Attorney General Opinion as authority.             The manual still recognizes Native Village of 

Barrow,      Native    Village    of   Chevak,   and   Metlakatla   Indian   Community   as   having 

exclusive or concurrent ICWA jurisdiction in their specified territories.  But the manual 

redefines the meaning of "concurrent" jurisdiction exercisable by the remaining tribes: 

the 2002 edition states that until a child custody proceeding is initiated, "the tribe and the 

[S]tate    simultaneously       share   authority    and   either   government      may    take   the   steps 

necessary to protect a child who may be at risk"; the 2004 edition removed that provision 

and otherwise limited concurrent jurisdiction to cases transferred from state court. 

                 OCS also changed the way it shared information with tribes.  Before 2004 

OCS   contacted   a   child's   tribe   "[a]s   soon   as   possible,   and   if   possible   prior   to   the 

assignment for investigation" to ascertain whether the tribe already had custody of the 

child   or   wanted   to   take   jurisdiction   over  a   child   protection   proceeding.     The   2004 

Attorney General Opinion advised that OCS was authorized "to release information 

concerning minor children for whom state court proceedings have not been initiated" to 

a "tribe properly exercising jurisdiction over a child protection proceeding involving the 

tribe's member child," but that "OCS must promulgate regulations governing the release 

of this information."  On March 21, 2005, OCS proposed new regulations for releasing 

information to tribes "if such a release is in the best interests of the child . . . and the child 

is not [the subject of a child in need of aid] case where the child's tribe is not a party" or 

"to assist in an investigation of a report of harm." 

                 One OCS supervisor described actual changes in OCS policy following the 

2004 Attorney General Opinion as follows: 

        104      Id. at 3. 

                                                    -27-                                                 6542 

----------------------- Page 28-----------------------

                Policies have changed recently regarding when we contact 
                the tribe in investigations. . . . [W]e don't share information 
                regarding investigations unless the investigation is underway. 
                In other words, . . . the tribe can't have access to allegations 
                that are made unless I have releases from my clients.              They 
                can't get copies of Reports of Harm unless . . . the parent in 
                the Report of Harm has signed a release.            Until [the tribes] 
                have intervened legally in a [child in need of aid] case.             In 
                which case, then, they get all that. 

                BVS also changed its policies based on the 2004 Attorney General Opinion. 

The 2004 Attorney General Opinion stated that "the [S]tate retains exclusive jurisdiction 

over Alaska Native adoption proceedings unless a tribe has reassumed jurisdiction" but 

the State's "longstanding policy" of "ratif[ying] Indian adoptions that occur under tribal 

custom as a matter of equity under state law" is unchanged.  According to a letter from 

BVS to the Kaltag Tribal Council, BVS began refusing to accept tribal court adoption 

paperwork in October 2005 unless it was from Native Village of Barrow, Native Village 

of   Chevak,   or   Metlakatla   Indian   Community,   and   began   processing   only   cultural 

adoptions for the remaining tribes. 

        C.      Ripeness Analysis For This Case 

                As noted earlier, the State moved to dismiss the Tribes' suit on ripeness 

grounds.      It   contended   the   Tribes   had   alleged   no   actual   harm,   but   rather   presented 

nothing more than an abstract disagreement with an opinion by the Attorney General. 

The State pointed out the lawsuit was filed shortly after the 2004 Attorney General 

Opinion was issued and no actual controversy regarding implementation had yet arisen. 

Relying primarily on our 2001 decision Brause v. State, Department of Health & Social 
Services,105    the   State   argued   that   in   the   absence   of   specific   facts   regarding   actual 

        105     21 P.3d at 358-60 (discussing federal law and affirming, under abuse of 

discretion     standard,   superior    court's   dismissal    on  ripeness    grounds    of  action   for 
                                                                                         (continued...) 

                                                  -28-                                               6542 

----------------------- Page 29-----------------------

governmental action to provide context, the case was not ripe and there was no need for 

the superior court to act. 

                The Tribes opposed the State's dismissal motion, arguing that (1) the State 

had   taken   action   well   beyond   the   mere   issuance   of   an   Attorney   General's   opinion, 

including changes in department manuals and actual dealings with tribes, and (2) then- 

existing Alaska case law on standing, including the concept of ripeness, required only the 

threat of future injury.  Judge Suddock agreed with the Tribes. 

                During the briefing for this appeal we issued our decision in State v. ACLU 
of Alaska.106  In that case we continued Brause's new emphasis on federal ripeness law 

with respect to a narrow line of cases - those involving pre-enforcement constitutional 
challenges to statutes.107    We stated that "the constitutionality of a statute generally may 

not be challenged as an abstract proposition" and looked to see if the plaintiffs had 
presented the basis for an exception to that general rule.108         We then noted the similarity 

of our earlier cases warning against advisory opinions and resolving abstract questions 

of law to the Ninth Circuit's recent decision in Alaska Right to Life Political Action 

        105     (...continued) 

declaratory relief in connection with constitutional challenge to statute precluding same- 
sex marriage because plaintiffs had not alleged any specific denial of rights associated 
with marriage). 

        106     204 P.3d 364 (Alaska 2009). 

        107     See id. at 366 (concerning "pre-enforcement challenge to a newly amended 

statute that prohibits the possession and use of marijuana"); id. at 368 (looking to federal 
law); see also Brause, 21 P.3d at 358 (concerning request for declaration that statute 
denying same-sex marriages recognition is unconstitutional where challengers did not 
allege they had been denied any specific benefits); id. at 358-60 (relying in part on 13A 
CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE  3532, at 112, 
114-15 (2d ed. 1984)). 

        108     ACLU of Alaska, 204 P.3d at 366. 

                                                  -29-                                            6542
 

----------------------- Page 30-----------------------

Committee v. Feldman.109   We stated:             "While pure legal questions that require little 

factual development are more likely to be ripe, a party bringing a pre[-]enforcement 
challenge must nonetheless present a concrete factual situation."110   Looking back to 

Brause and its reliance on federal law, we reiterated the practical formulation for ripeness 

of pre-enforcement constitutional challenges to statutes: balancing the need for decision 
against the risks of decision.111 

                The plaintiffs in ACLU of Alaska had challenged a newly enacted statute 

criminalizing the possession of small amounts of marijuana, arguing that the statute was 
unconstitutional under Ravin v. State.112         We first determined that because the plaintiffs 

faced federal prosecution for marijuana possession regardless of state law, the threat of 
the new law did not really create a hardship to them.113         We then determined that concrete 

facts regarding the State's enforcement of the new statute might aid in our decision.114 

We   also   considered   the   litigation's   high-profile   nature,   with   interest   by   both   the 

legislative and executive branches, and that deference to the legislative branch prohibits 

us from declaring statutes unconstitutional unless "squarely faced with the need to do 

        109     Id. at 368-69; see Feldman, 504 F.3d 840 (9th Cir. 2007). 

        110     ACLU of Alaska, 204 P.3d at 368 (quoting Feldman, 504 F.3d at 849) 

(internal quotation marks omitted). 

        111     Id. at 369. 

        112     Id.   at   366;  see   Ravin,   537   P.2d   494,   504,   511   (Alaska   1975)   (holding 

Alaskans have fundamental right to privacy in their homes and allowing possession of 
small amounts of marijuana in home by adults for personal and private use). 

        113     ACLU of Alaska, 204 P.3d at 369-70. 

        114     Id. at 372-73. 

                                                  -30-                                             6542
 

----------------------- Page 31-----------------------

so."115  Because of these factors, we concluded that the decisional risks outweighed the 

need for decision and that the plaintiffs therefore were not entitled to an exception from 
the general rule against pre-enforcement constitutional challenges to statutes.116                  We 

vacated     the  superior    court's  judgment     in  the   plaintiffs'  favor   and   dismissed    the 
proceedings.117 

                The State and the Tribes disagree on ACLU of Alaska 's application here. 

The State implicitly characterizes this case as a pre-enforcement challenge to the 2004 

Attorney   General   Opinion   and   asserts   that   the   Tribes   are   asking   "for   a   sweeping 

decision" despite the "factual vacuum of this case." The State argues the Tribes have not 

demonstrated a need for a decision, but the risk of decision is high because "jurisdictional 

analysis depends on [a variety of different] factual circumstances."  The State points to 

a number of hypothetical fact patterns raising difficult questions and leading to differing 

results in the jurisdictional analysis, including if only one parent is a tribal member, if the 

parents are members of different tribes, and if one or both of the parents do not consent 

to tribal jurisdiction.   It concludes that considering the tribal jurisdiction question raised 

here in the absence of concrete facts "invites an inaccurate[,] broad[,] and unqualified 

jurisdictional ruling." 

                The Tribes respond that the State's argument rings hollow because the State 

contends that no Alaska Native tribe possesses any jurisdiction to initiate ICWA-defined 

child custody proceedings unless the tribe has reassumed jurisdiction under ICWA  

 1918. The Tribes assert that this case doesnot raise an issue about tribal jurisdiction and 

authority over non-members and expressly ask us to refrain from addressing that issue. 

        115     Id. at 373. 

        116     Id. at 371-74. 

        117     Id. at 374. 

                                                  -31-                                              6542 

----------------------- Page 32-----------------------

The Tribes point to the existence of tribal court systems and specific examples of the 
2004 Attorney General Opinion's effect on tribal jurisdiction and powers,118 and argue 

that there is a real case and controversy ripe for decision. 

                 The Tribes distinguish ACLU of Alaska by observing that "the [c]ourt in 

ACLU was most influenced by the fact that the actions the plaintiffs sought to engage in, 

even if protected from criminalization under Alaska law, still remained criminal under 

federal law" and "[n]o analogue is present here."               The Tribes also point out that "the 

[c]ourt inACLU found that the plaintiffs' declarations did not indicate that the statute at 

issue would [a]ffect their conduct, or that they would be the subjects of enforcement," 

while "[h]ere, it is clear . . . that the State is enforcing its new policies vigorously."  The 

Tribes further note that "in ACLU a 'narrowing construction' of the new marijuana 

statute was possible, thus making adjudication of individual cases more appropriate; here, 

by contrast, the State's position is monolithic, barring all child protection proceedings 

from being initiated in tribal courts absent . . . reassumption . . . and barring [recognition 

of] all tribal court adoption proceedings." (Emphasis in original.)  The final distinction 

drawn by the Tribes is that "inACLU due respect for the legislative branch required some 

hesitance on the [c]ourt's part before declaring an enacted statute unconstitutional," but 

"[h]ere, in contrast, state officials are taking actions based upon their interpretation of 

         118     The Tribes point out that based on the 2004 Attorney General Opinion, 

OCS changed its policy on recognizing existing tribal child custody proceedings, and that 
the record reflects one application of the new policy involving a member child of the 
Kenaitze Tribe.        The child had been:        (1) the subject of several emergency petitions 
before the Tribe; (2) the subject of multiple reports of harm OCS had transferred to the 
Tribe   for   follow-up;   and   (3)  held   by   a   state   court   to   be   under   the   tribal   court's 
jurisdiction.     OCS   disregarded   this   previous   activity   and   reopened   its   investigation, 
requesting a state court order compelling the child's attendance at an interview regarding 
allegations the Tribe had already investigated and found unsubstantiated. The Tribes also 
point out that BVS stopped issuing birth certificates for children adopted in tribal courts 
shortly after the 2004 Attorney General Opinion was issued. 

                                                   -32-                                              6542
 

----------------------- Page 33-----------------------

Alaska Supreme Court case law - a subject on which this [c]ourt is in the best position, 

and has an obligation, to decide." 

                 The Tribes have the better argument. The State's actions in response to the 

2004 Attorney General Opinion go beyond enacting a statute that might be challenged 

as facially unconstitutional. Indian children may be at risk of harm because of the State's 

refusal to coordinate and cooperate with tribes regarding reports of harm; Indian children, 

as well as their natural and putative adoptive parents, may be held in legal limbo by the 

State's refusal to give full faith and credit to tribal adoption decrees; and both the State 

and tribal courts need to understand the extent to which tribal court orders in "child 

custody proceedings," as that term is defined in ICWA, are entitled to full faith and 

credit.    We agree with Judge Suddock:            families and children are being affected; State 

and tribal relations are being affected; the State and Alaska Native tribes, as well as State 

and   tribal   courts,   are   being   affected.  Under   our   approach   to   ripeness   in   cases   not 

involving pre-enforcement constitutional challenges to statutes, the Tribes have readily 
established the injury and threat of injury necessary to support this suit.119 

                 We conclude that the legal issue before us has been sufficiently narrowed 

by our previous cases and the conflicting Ninth Circuit cases.                 There are enough facts 

before us to resolve the parties' fundamental jurisdictional dispute in limited fashion: 

We will decide whether - absent formal reassumption of jurisdiction under ICWA  

1918 - Alaska Native tribes have inherent sovereign jurisdiction, concurrent with the 

        119      See    generally    ACLU      of  Alaska,    204   P.3d    at  375-76    (Carpeneti,     J., 

dissenting) ("We interpret standing, and by extension ripeness, leniently in order to 
facilitate access to the courts:  'The basic idea . . . is that an identifiable trifle is enough 
for standing to fight out a question of principle.' " (quoting State v. Planned Parenthood 
of   Alaska,   35   P.3d   30,   34   (Alaska   2001))); Brause,   21   P.3d   at   360-61   (Bryner,   J., 
dissenting) ("This court's standing jurisprudence indicates a willingness to adjudicate 
claims where the injury claimed is but 'an identifiable trifle.' " (quoting Bowers Office 
Prods., Inc. v. Univ. of Alaska, 755 P.2d 1095, 1097 (Alaska 1998))). 

                                                   -33-                                              6542
 

----------------------- Page 34-----------------------

State, to initiate ICWA-defined child custody proceedings.              We therefore affirm Judge 

Suddock's decision denying the State's motion to dismiss the Tribe's suit and we decline 

to vacate the superior court judgment and dismiss this appeal on ripeness grounds. 

        D.	     Today's Holding Regarding Alaska Native Tribal Sovereignty And 
                ICWA 

                John v. Baker  is foundational Alaska authority regarding Alaska Native 

tribal jurisdiction over the welfare of Indian children, notwithstanding the sharpness of 
the debate or the division of the court in reaching its ultimate conclusion.120  Notably, the 

State does not ask that John v. Baker be overruled. 

                Having thoroughly outlined John v. Baker 's tribal jurisdiction analysis, we 

reiterate   only   the   following   four   points   from   that   decision   to   set   the   stage   for   our 

consideration   of   the   State's   arguments   here.    First,   unless   and   until   its   powers   are 

divested by Congress, a federally recognized sovereign Indian tribe has powers of self- 

government that include the inherent authority to regulate internal domestic relations 
among its members.121        Second, ANCSA's elimination of nearly all Indian country in 

Alaska   did   not   divest   federally   recognized   sovereign   Alaska   Native   tribes   of   their 

        120     The debate continued among commentators after the decision.                  See, e.g., 

David M. Blurton, John v. Baker and the Jurisdiction of Tribal Sovereigns Without 
Territorial Reach, 20 ALASKA L. REV. 1, 26 (2003) (criticizingJohn v. Baker 's holding 
and interpreting United States Supreme Court cases to be "highly indicative . . . that 
tribes, without Indian country, do not have inherent sovereign powers and lack criminal, 
civil adjudicatory, and regulatory authority"); Andy Harrington, Exclusive of What? The 
Historical Context of the 1970 "Metlakatla" Amendment to PL 280, 23 ALASKA L. REV. 
 1, 7-9, 30-32, 38-49 (2006) (criticizing John v. Baker dissent's conclusion that 1970 
amendment indicates P.L. 280 divested Alaska Native tribes of jurisdiction and taking 
position   that   (1)   amendment   was   intended  to   supercede   federal   case   law   holding 
Metlakatla Reservation was not in Indian country and (2) "exclusive" in P.L. 280  2(c) 
does not mean exclusive of tribal jurisdiction, but instead means exclusive of federal 
jurisdiction under the General Crimes and Major Crimes Acts, 18 U.S.C.  1152, 1153). 

        121	    John v. Baker, 982 P.2d at 751. 

                                                  -34-	                                           6542
 

----------------------- Page 35-----------------------

authority to regulate internal domestic relations among their members.122                  Third, we 

"must resolve ambiguities in statutes affecting the rights of Native Americans in favor 

of Native Americans" and "we will not lightly find that Congress intended to eliminate 
the sovereign powers of Alaska tribes."123           Fourth, "Congress's purpose in enacting 

ICWA reveals its intent that Alaska Native villages retain their power to adjudicate child 

custody disputes" and "ICWA's very structure presumes both that the tribes . . . are 

capable of adjudicating child custody matters . . . and that tribal justice systems are 
appropriate forums for resolution of child custody disputes."124 

                The State contends that ICWA  1911 constitutes a "complete jurisdictional 

scheme" limiting a tribe's initiating jurisdiction to child custody proceedings in Indian 

country under  1911(a), but allowing, under certain conditions, transfer jurisdiction for 

those proceedings outside of Indian country under  1911(b). According to the State, this 

scheme "reflects Congress'[s] reasonable balancing of tribal rights, parental rights off- 

reservation, and state rights off-reservation."  The State argues that the superior court's 

acknowledgment of inherent sovereign jurisdiction to initiate child custody proceedings: 

(1)   "fundamentally   upend[s]   ICWA's   delicate   balance   of   parental,   state,   and   tribal 

interests"; (2) circumvents transfer jurisdiction limitations; (3) allows tribes to exercise 

jurisdiction over non-members; and (4) magnifies the disjunction in Indian law that P.L. 

280 may have divested Alaska Native tribal powers inside Indian country but not outside 

        122     Id. at 753.
 

        123     Id. at 752-53 (citing In re F.P., 843 P.2d at 1219). 
 

        124     Id. at 753-54 (citing 25 U.S.C.  1911).
 

                                                 -35-                                              6542 

----------------------- Page 36-----------------------

it - as noted in John v. Baker, "generally, Indian nations possess greater powers in 
Indian country than they do outside it."125 

                The Tribes respond that:   (1) ICWA was intended to give tribes more, not 

less, power and authority to protect the best interests of their children; (2) this case does 

not present the issues the State raises concerning tribal jurisdiction over non-members; 

and (3) the remaining vestige of Nenana's divestiture interpretation of P.L. 280 should 

be overruled, thereby eliminating the alleged jurisdictional disjunction. 

                We agree with the Tribes.   ICWA creates limitations on states' jurisdiction 

over ICWA-defined child custody proceedings, not limitations on tribes' jurisdiction over 
those proceedings.126     And we acknowledge that in the nearly 25 years since our Nenana 

decision, our view of P.L. 280's impact on tribal jurisdiction has become the minority 

view - other courts and commentators have instead concluded that P.L. 280 merely 
gives states concurrent jurisdiction with tribes in Indian country.127             What remains of 

        125     Id. at 748 n.46. 

        126     See Holyfield, 490 U.S. at 44-45 (stating ICWA's purpose was "to make 

clear that in certain situations the state courts did not have jurisdiction over child custody 
proceedings" because "Congress was concerned with the rights of Indian families and 
Indian    communities      vis-à-vis   state   authorities"   (emphasis     in  original));   COHEN'S 
HANDBOOK, note 16, above, at  11.01[1], 820 n.2 ("This conclusion is inescapable from 
a reading of the entire statute, the main effect of which is to curtail state authority."); 
ICWA HANDBOOK, note 17, above, at 5 (observing ICWA was intended, in part, "to 
encourage tribal adjudication of child custody proceedings involving Indian children"). 

        127     See Kaltag Tribal Council, 344 Fed. Appx. at 325 ("[N]either the ICWA 

nor   [P.L.]   280   prevented   the   Kaltag   court   from   exercising   jurisdiction.");   COHEN'S 
HANDBOOK, note 16, above, 6.04[3][c], at 560-61 ("The nearly unanimous view among 
tribal courts, state courts and lower federal courts, state attorneys general, the Solicitor's 
Office for the Department of the Interior, and legal scholars, is that [P.L.] 280 left the 
inherent     civil  and   criminal   jurisdiction    of  Indian   nations   untouched."      (footnotes 
omitted)); ICWA HANDBOOK, note 17, above, at 34 ("It has become clear . . . that the 
                                                                                        (continued...) 

                                                 -36-                                               6542 

----------------------- Page 37-----------------------

Nenana must now be overruled.            We adopt the view that P.L. 280 did not divest tribes 

of all jurisdiction under  1911(a), but rather created concurrent jurisdiction with the 

State. 

                 Accordingly, in light of our foundational decision John v. Baker, ICWA, 

federal case law regarding Alaska Native tribal sovereignty, and the absence of express 

contrary Congressional intent, we hold that federally recognized Alaska Native tribes that 

have     not  reassumed      exclusive    jurisdiction    under      1918(a)    still  have   concurrent 

jurisdiction to initiate ICWA-defined child custody proceedings, both inside and outside 

of Indian country.  Necessarily, federally recognized Alaska Native tribes are entitled to 

all   of   the   rights   and   privileges   of   Indian   tribes   under   ICWA,   including   procedural 
safeguards imposed on states128 and  1911(d) full faith and credit with respect to ICWA- 

defined child custody orders to the same extent as other states' and foreign orders.129 

         127     (...continued) 

retrocession provisions . . . permit Indian tribes to reassume exclusive jurisdiction over 
their   children   domiciled   in   Indian   country,   but   these   tribes   can   exercise   concurrent 
jurisdiction     over   their  children    along   with   state   courts   and   can   exercise   transfer 
jurisdiction under  1911(b) . . . ."); CASE & VOLUCK, note 77, above, at 394 ("[I]t is now 
generally agreed that [P.L. 280] does not deprive tribes of concurrent jurisdiction."); id. 
at 390 n.134 ("Retrocession does not seem to be required for tribal courts to exercise 
concurrent jurisdiction over child custody matters, because such jurisdiction was not 
surrendered to the state under P.L. 280."). 

         128     See, e.g., 25 U.S.C.  1912(a) (2000) (requiring notice to Indian tribes); 

25 U.S.C.  1911(b) (providing Indian tribes with right to petition for transfer to tribal 
court); id. at  1911(c) (providing Indian tribes with right to intervene); see generally 
ICWA HANDBOOK, note 17, above, at 83-111. 

         129     See John v. Baker, 982 P.2d at 761-62 ("ICWA requires courts to extend 

full faith and credit to tribal court decisions involving 'child custody proceedings' as that 
term is defined by [ICWA].").  This case does not present a specific full faith and credit 
dispute and we do not need to discuss potential limitations on  1911(d) full faith and 
                                                                                          (continued...) 

                                                   -37-                                                6542 

----------------------- Page 38-----------------------

                 We do not have before us sufficient facts to make determinations about 

specific limitations on inherent tribal jurisdiction over ICWA-defined child custody 

proceedings.       The nature and extent of tribal jurisdiction in any particular case will 

depend upon a number of factors, including but not limited to:                    (1) the extent of the 

federal   recognition   of   a   particular   tribe   as   a   sovereign;   (2)   the   extent   of   the   tribe's 

authority under its organic laws; (3) the tribe's delegation of authority to its tribal court; 

and (4) the proper exercise of subject matter and personal jurisdiction. Among the many 

issues we are not deciding today are:   (1) whether, parallel to ICWA  1911(b) transfer 

jurisdiction limitations, parents of Indian children might have the right to object to tribal 

jurisdiction;   (2)   the   extent   of   tribal   jurisdiction   over   non-member   parents   of   Indian 

children; and (3) the extent of tribal jurisdiction over Indian children or member parents 

who have limited or no contact with the tribe.  We therefore do not need to address the 

varied hypothetical situations posited by the State as creating difficult jurisdictional 

questions - we leave those for later determinations under specific factual circumstances. 

         E.	     Our     Decision's     Impact     On    The    Judgment       For    Declaratory      And 
                 Injunctive Relief 

                 Our ruling is more limited than the declaratory relief entered by Judge Tan, 

and we therefore vacate that portion of the declaratory judgment going beyond today's 

decision.   Today's decision should clarify any confusion about jurisdiction that may be 

held by federally recognized Alaska Native tribes to initiate ICWA-defined child custody 

proceedings.       We are confident the State's agencies will follow our clarifying ruling 

without the need for further injunctive relief, and out of respect for the executive branch 

         129     (...continued) 

credit.   See, e.g., Starr v. George, 175 P.3d 50, 55-58 (Alaska 2008) (discussing due 
process requirement for orders afforded  1911(d) full faith and credit). 

                                                    -38-	                                               6542 

----------------------- Page 39-----------------------

we   therefore   vacate   that   portion   of   the   judgment   entering   such   relief   (but   without 

prejudice to the right of the Tribes to seek future relief if deemed necessary). 

V.      CONCLUSION 

               The superior court's judgment is AFFIRMED in part and VACATED in 

part, as set forth above. 

                                                -39-                                         6542
 
Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC