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. Hawkins v. Attatayuk (4/11/2014) sp-6888

Hawkins v. Attatayuk (4/11/2014) sp-6888

         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  



HAROLD HAWKINS,                                        )  

                                                       )        Supreme Court No. S-14812  

                  Appellant,                           )  

                                                       )        Superior Court No. 2NO-11-00148 CI  

         v.                                            )  

                                                       )        O P I N I O N  

ROSALIND ATTATAYUK,                                    )  

                                                       )        No. 6888 - April 11, 2014  

                  Appellee.                            )  

                                                       )  



                  Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                       

                  Second Judicial District, Nome, Ben Esch, Judge.  



                  Appearances:  Samuel  J.  Fortier,  Fortier  &  Mikko,  P.C.,  

                  Anchorage,  for  Appellant.  Sarah  M.  Carver,  Bethel,  and  

                                    

                  James J. Davis, Jr., Anchorage, Alaska Legal Services Corp.,  

                  for Appellee.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                               

                  Bolger, Justices.  



                  STOWERS, Justice.  



I.       INTRODUCTION  



                  Harold  Hawkins  and  Rosalind  Attatayuk  married  and  lived  together  in  



St. Michael until 1981, when they dissolved their marriage.  Hawkins was awarded the  

                                                                                                 



couple's home in the dissolution and continued to reside on the property, which was  



federally owned.  In 1993 Attatayuk applied for and received a restricted townsite deed  

                                                    



to  the  land  by  allegedly  fraudulent  means.    She  brought  a  trespass  action  against  

                                                                                                    


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

                              

Hawkins,  alleging  that  she  had  undisputed  title  to  the  land.    Hawkins  denied  this  



allegation.  The superior court ruled on summary judgment that Attatayuk's restricted  



                                                            

townsite deed gave her title to the land.  Because Alaska state courts do not have subject  



                                                                

matter  jurisdiction  to  adjudicate  title  or  right  to  possession  of  restricted  townsite  



property, the only issue presented in this appeal is whether the superior court adjudicated  



                                            

title to the land in question.  We hold that the superior court did adjudicate title and, as  



a result, exceeded its jurisdiction.  



II.       FACTS AND PROCEEDINGS  



                                                                                                      

                    In 1926, Congress enacted the Alaska Native Townsite Act, extending the  



                                                                                       1  

                                                                                          Under the Townsite Act,  

provisions of the federal townsite laws to Alaska Natives. 



Native townsite residents could receive a restricted deed that was inalienable absent  



                          2  

federal approval.    The Townsite Act was repealed in 1976, but a savings provision  



                                                                     3  

                                                                                     

protected all land use rights existing at that time.                    Federal regulations allowed qualifying  



Native  residents  to  apply  for  a  restricted  townsite  deed  after  the  Townsite  Act  was  

repealed.4  



          A.        Facts  



                    Harold  Hawkins  and  Rosalind  Attatayuk  married  in  1972  and  lived  in  



                                                    

St. Michael in a house they owned located on federal land.  In 1981 Attatayuk moved to  



          1         Former 43 U.S.C.  733-36, 44 Stat. 629 (1926);  United States v. Atl.  



Richfield Co. , 435 F. Supp. 1009, 1015 (D. Alaska 1977), aff'd 612 F.2d 1132 (9th Cir.  

                                                                                              

1980).  



          2         44 Stat. 629; 43 C.F.R.  2564.4 (2014).  



          3  

                                                                                                              

                    Federal Land Policy and Management Act, P.L. No. 94-579, 90 Stat. 2743  

                                                                         

(1976); People of S. Naknek v. Bristol Bay Bor. , 466 F. Supp. 870, 872 n.3 (D. Alaska  

1979).  



          4         43 C.F.R.  2564.1 (2014).  



                                                              -2-                                                        6888
  


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

             

Nome, but the couple did not dissolve their marriage until 1988.  In their petition for  



                                                                                                  

dissolution, the only asset that the couple listed as real property was:  "house 20 x 30 two  



                                                                                                  

story in St. Michael."  Hawkins and Attatayuk stated that they jointly owned the house  



                    

and  sought  to  have  the  court  award  it  to  Hawkins,  which  the  court  did.    Hawkins  



                      

continued  to  live  in  the  house  after  the  dissolution.    He  opened  a  restaurant  on  the  



property and slowly made improvements over the years.  



                                                                                        

                     In December 1993 Attatayuk applied for a restricted townsite deed to the  



                                                                                                                 

property.  She signed her name certifying that "there is no one living on, or claiming an  



interest in, this tract other than myself," despite the fact that she knew there was a house  



on the property and that the house had been awarded to Hawkins in their dissolution  



                                                    

decree.  She stated that the only improvement on the property was a steam bath.  The  



                                                                                  

federal government granted Attatayuk the restricted townsite deed in March 1994.  It is  



                                                                                                                         

unclear when Hawkins learned that Attatayuk had applied for and received the deed, but  



it appears that he discovered this fact no later than 2010 or 2011.  



          B.         Proceedings  



                                                                                      

                     In August 2010 Hawkins invited his and Attatayuk's daughter, Marcella,  



                                           

and  her  family  to  live  in  his  house  and  work  at  the  restaurant.    But  in  May  2011  



                                      

Hawkins, acting pro se, filed a complaint to evict Marcella and her family, alleging that  



                                                               

she had broken numerous pieces of his personal property and had damaged the house  



                                                                  

itself.    Immediately  afterwards,  on  May  18,  2011,  Attatayuk  filed  an  action  against  



                                                                                       

Hawkins for trespass in order to allow her daughter to remain on the property.  In her  



                                                                                                   

complaint  Attatayuk  alleged,  "There  is  no  dispute  that  the  land  .  .  .  belongs  to  



                                                                                                                      

Ms. Attatayuk."  Later in the complaint she asserted that "[d]efendant does not dispute  



plaintiff's title to the land."  



                                                                                                         

                     Two  days  later,  on  May  20,  2011,  the  court  held  a  hearing  on  both  



                                                                 -3-                                                          6888
  


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

Attatayuk's trespass complaint and Hawkins's eviction action against Marcella.5  At the  



hearing Hawkins explained that the dissolution decree gave him a right to have his house  



                                                                                     

on the property.  He also stated that Attatayuk's deed was void because she was not  



                                               

living  on  the  property  when  she  applied  for  the  deed,  and  she  had  not  notified  the  



                                                                   

occupant of the land, Hawkins, that she was applying for the deed.  The court then asked,  



                                                                

"[A]re you suggesting, Mr. Hawkins, that you believe the issue of ownership of that land  



is in question?"  Hawkins replied, "I do, your honor."  



                     On June 29, 2011, Hawkins, proceeding pro se, filed a written answer to  



                                                                                                            

Attatayuk's complaint.  Although he did not affirmatively plead fraud, he "denied" her  



                                                              

assertions that "[t]here is no dispute that the land . . . belongs to Ms. Attatayuk," and that  



                                                                                                               

"[d]efendant  does  not  dispute  plaintiff's  title  to  the  land."    He  also  "denied"  her  



allegations that "[d]efendant has no right to be on the land," and that his house was  



"sitting on Attatayuk's Native land."  



                                            

                     On November 16, 2011, Attatayuk moved for partial summary judgment.  



 She argued that "there are no facts in dispute in this case:  Ms. Attatayuk has legal title  



                                                                                  

to the at-issue land."  Hawkins did not file a response to the motion for partial summary  



                                                                                                    

judgment.  The court granted the motion, finding that "[Attatayuk] has title to the subject  



                                                                                         

property," and "[Hawkins] has no right to place property on the land."  The court also  



                

granted a motion in limine prohibiting Hawkins from arguing "fraud by Ms. Attatayuk  



in obtaining the restricted deed" at trial.  



                                                           

                    In March 2012 Hawkins hired an attorney and filed a motion to dismiss the  



                                                                   

case for lack of subject matter jurisdiction.  He argued that the superior court "lack[ed]  



                                                                       

subject matter jurisdiction to determine issues of ownership, trespass or property rights  



          5         The  court  explained  that  it  held  the  hearing  on  Attatayuk's  action  for  



                                                                                                                   

trespass  two  days  after  filing  "because  the  parties  basically  were  going  to  be  here  

anyway."  



                                                                -4-                                                            6888  


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

           

under state law, because federal law controls the field entirely."  Attatayuk responded  



                                                                       

that  "here,  title  to  Ms.  Attatayuk's  [restricted  townsite  deed]  is  not  at  issue."    The  



superior court denied the motion.  



                                                                                                                

                    The superior court held a jury trial on the issue of damages. The jury found  



                                                                                          

that Attatayuk was entitled to $123.12 per month for the use of her land for 18 months  



                                                                                                             

and awarded her $2,216.16 in total damages.  Attatayuk moved for $443 in attorney's  



fees and for final judgment.  Hawkins countered by arguing, again, that the superior  



court lacked jurisdiction over the case.  The superior court entered final judgment for  



Attatayuk on May 31, 2012.  Hawkins appeals.  



III.      STANDARD OF REVIEW  



                    We  review  questions  of  law,  including  questions  of  subject  matter  

jurisdiction, de novo. 6  



IV.       DISCUSSION  



                                                                       

                    Hawkins's central argument is that the superior court lacked subject matter  



                                                                                         

jurisdiction. In the alternative, he contends that: (1) the grant of summary judgment was  



erroneous because there were still issues of material fact, and the court failed to inform  



                                                          

him of the "proper procedures"; (2) the court's order prohibiting Hawkins from arguing  



                                

fraud in Attatayuk's deed at trial was erroneous; (3) some of the jury instructions were  



erroneous; and (4) the superior court denied Hawkins procedural and substantive due  



                                                                                  

process.  Because we hold that the superior court did not have subject matter jurisdiction,  



we do not reach his other arguments.  



          6         Foster  v.  State,  Dep't  of  Transp .,  34  P.3d  1288,  1290  (Alaska  2001)  



(questions of subject matter jurisdiction reviewed de novo); DeVaney v. State, Dep't of  

                                                                                                                   

Revenue,  Child  Support  Enforcement  Div.  ex.  rel.  DeVaney ,  928  P.2d  1198,  1200  

                                                                                              

(Alaska 1996) (questions of law reviewed de novo) (citing Jones v. Jennings , 788 P.2d  

                                           

732, 735 (Alaska 1990)).  



                                                             -5-                                                       6888
  


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

          A.	       The  Superior  Court  Did  Not  Have  Subject  Matter  Jurisdiction  To  

                    Adjudicate The Ownership Or Right To Possession Of A Restricted  

                    Townsite Lot.  



                    "The  doctrine  of  subject  matter  jurisdiction  applies  to  judicial  and  



                                                                                                                                 7  

                                                       

quasi-judicial bodies to ensure that they do not overreach their adjudicative powers." 



 Subject  matter  jurisdiction  is  "the  legal  authority  of  a  court  to  hear  and  decide  a  

                         



                                      8  

particular  type  of  case."     Consequently,  subject  matter  jurisdiction  is  a  threshold  



                                                                                      9  

determination and prerequisite for a court to hear a case.   "As a court which does not  



have subject matter jurisdiction is without power to decide a case, this issue cannot be  



              10  

                  The issue of subject matter jurisdiction "may be raised at any stage of the  

waived."                                                                                                   

litigation and if noticed must be raised by the court if not raised by one of the parties."11  



                                                             

                    Hawkins is correct that the superior court lacked subject matter jurisdiction  



to adjudicate title to the property in question.  State courts do not have subject matter  



                                                                                                                       

jurisdiction to adjudicate the title or right to possession of restricted townsite lots.  In  



                                                                                                             

 1953 Congress enacted Public Law 280, codified in part as 28 U.S.C.  1360, which  



          7         Nw. Med. Imaging, Inc. v. State, Dep't of Revenue , 151 P.3d 434, 438   



(Alaska 2006).  



          8         Id.  (citing  ERWIN  CHEMERINSKY ,   FEDERAL  JURISDICTION  257  (3rd  ed.  



 1999)).  



          9         See id. ("Subject matter jurisdiction is a prerequisite to a court's ability to                   



decide a case.");  Gilbert v. Gladden, 432 A.2d 1351, 1353-54 (N.J. 1981) (holding  

that . . . subject matter jurisdiction involves "a threshold determination as to whether the  

                                                                                                              

court is legally authorized to decide the question presented").  



          10        Robertson v. Riplett, 194 P.3d 382, 386 (Alaska 2008) (quoting Wanamaker  



v. Scott, 788 P.2d 712, 714 n.2 (Alaska 1990)).  



          11        Hydaburg Co-op. Ass'n v. Hydaburg Fisheries , 925 P.2d 246, 248 (Alaska  



 1996) (quoting Burrell v. Burrell , 696 P.2d 157, 162 (Alaska 1984)).  



                                                               -6-	                                                        6888
  


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

granted states, including Alaska,12 limited civil jurisdiction over cases arising in "Indian       



              13  

country."         But the law does not "confer jurisdiction upon the State to adjudicate, in  



probate  proceedings  or  otherwise,  the  ownership  or  right  to  possession  of  [trust  or  



                                                               14  

                                                                   Because the United States Congress has  

restricted] property or any interest therein."  



                                                                                              

not granted jurisdiction, Alaska state courts do not have subject matter jurisdiction to  

adjudicate any dispute regarding the ownership of Alaska Native townsite property.15  



                   Attatayuk's claim to the land rests on a restricted townsite deed, which  



makes  the  land  "subject  to  a  restriction  against  alienation  imposed  by  the  United  



           16  

                 Both  parties  agree  that  the  superior  court  did  not  have  jurisdiction  to  

States."                                                                          



adjudicate  title  to  the  land  in  question.              This  is  consistent  with  our  precedent.    In  

                                                              



Ollestead v. Native Village of Tyonek, we held that "[s]ubsection 1360(b) precludes state  

                   



courts from adjudicating the ownership or right to possession of property or an interest  

                                     



therein belonging to an Indian tribe or community that is held in trust by the United  

States or is subject to a restriction against alienation imposed by the United States."17  



Nonetheless, Attatayuk argues that the superior court had subject matter jurisdiction  

                                    



          12       Alaska  was  added  to  the  bill  by  an  amendment  in  1958.    Pub.  L.  No.  



85-615,  2, 72 Stat. 545 (1958).  



          13       28 U.S.C.  1360(a) (2012).  



          14       Heffle      v.    State ,     633     P.2d      264,      267      (Alaska       1981)       (quoting  



28 U.S.C.  1360(b) (1976)).  



          15       COHEN 'S  HANDBOOK  OF   FEDERAL  INDIAN    LAW  551-53  (Nell  Jessup  



Newton ed., 2012).  



          16       Heffle , 633 P.2d at 267.  



          17       560 P.2d 31, 34 (Alaska 1977).  



                                                            -7-                                                      6888
  


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

because either Hawkins did not contest ownership of the land, or his claim to the land  

                                                  



was a "sham" claim.  



            B.	        Hawkins Contested The Validity Of Attatayuk's Restricted Townsite  

                                                                                                                 

                       Deed.  



                       Hawkins clearly contested the title and right to possession of the property.  



On May 20, 2011, two days after Attatayuk filed her complaint against Hawkins for  



injunctive relief and damages for trespass, the court held a hearing on both Attatayuk's              



trespass complaint and the eviction complaint Hawkins had filed against their daughter.  

                                                                                



At the hearing Hawkins argued that the dissolution decree gave him a right to have his                         



house on the property.  He also contended that Attatayuk's restricted townsite deed was  



                                                                                            

void because she had not notified the occupant of the land that she was applying for the  



                                                                         

deed and because she was not living on the land at the time.  The court then asked,  



                                                                                             

"[A]re you suggesting, Mr. Hawkins, that you believe the issue of ownership of that land  



is in question?"  Hawkins replied, "I do, your honor."  He then alleged that Attatayuk  



                                                  

had committed fraud by not disclosing when she applied for a deed that Hawkins lived  



                                                                                                           

on the land and that he had received the house in the divorce.  When he filed his formal  



answer,   he   denied   Attatayuk's   assertion   that   "[t]here   is   no   dispute   that   the  



                                         

land . . . belongs to Ms. Attatayuk."  He also denied the remainder of her allegations that  



the title was not in dispute.  



                       Not only did Hawkins clearly contest the ownership of the property, the  



                                                                            

 superior court plainly adjudicated the issue by awarding partial summary judgment on  



                                                                                                                        

the question of title.   The court, in granting Attatayuk's motion for partial summary  



judgment, determined that "[Attatayuk] has title to the subject property," and "[Hawkins]  



                                                                           

has no right to place property on the land." The court's conclusion that "[Attatayuk] has  



title to the subject property" was undisputably an adjudication of an ownership interest  



                                                                                             

in restricted townsite property.  But under 28 U.S.C.  1360(b) the superior court may  



                                                                        -8-	                                                                6888
  


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

                                                                                                      

not adjudicate "the ownership or right to possession  of such [trust] property or any  



interest therein."  



                                                                                                                                     

                         Attatayuk also argues that Hawkins was required to either assert his fraud  



                                                                                                                        

claim in his answer to Attatayuk's complaint or amend his answer to do so after retaining  



                                                                                                             

counsel.  The Alaska Rules of Civil Procedure provide that affirmative defenses such as  



                                                                          18 

                                                                                                                                          

fraud are to be included in the answer,                                       but Hawkins was pro  se  when  he filed his  



answer  and  likely  unaware  of  this  procedural  requirement.    We  have  held  that  the  



superior court "should generally hold the pleadings of pro se litigants to less stringent  



                                                             19  

standards than those of lawyers."                                 This leniency is especially appropriate "when lack  



of familiarity with the rules rather than gross neglect or lack of good faith underlies  



                                20  

                                                

litigants'  errors."                   And  when  Hawkins  retained  counsel,  counsel  entered  a  limited  



appearance solely to contest the court's jurisdiction.  



                                                                                                             

                         Here, both Attatayuk and the superior court were aware that Hawkins's  



                                                                                                  

defense  against  Attatayuk's  trespass  action  rested  on  his  challenge  to  Attatayuk's  



                                                                      

ownership of the land; Hawkins had made this very clear at the first hearing.  When  



Hawkins realized he still needed to file a written answer despite asserting his defenses  



                                                                                                                                       

at the hearing, he made a good faith effort to do so.  He clearly denied that Attatayuk had  



title to the property, even if he did not clearly assert as an affirmative defense that his  



                                                                                                                  

reason was fraud.  Moreover, Hawkins later retained counsel for the limited purpose of  



                                                                                                                                     

contesting subject matter jurisdiction, and his motion to dismiss clearly put at issue his  



            18           Alaska R. Civ. P. 8(b).  



            19           Gilbert v. Nina Plaza Condo Ass'n, 64 P.3d 126, 129 (Alaska 2003).  



            20          Id. (quoting Kaiser v. Sakata , 40 P.3d 800, 803 (Alaska 2002)) (internal   



quotation marks omitted);                       see also DeNardo v. Calista Corp ., 111 P.3d 326, 330 (Alaska   

2005) (holding that the court has "a policy against finding unintended waiver of claims       

in technically defective pleadings filed by pro se litigants").  



                                                                             -9-                                                                      6888
  


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

challenge  to  Attatayuk's  restricted  townsite  deed.    Finally,  there  can  be  no  serious  



dispute that Hawkins alleged Attatayuk obtained her restricted townsite deed by fraud:                           



the  superior  court  granted   Attatayuk's  motion  in  limine  to  preclude  Hawkins  from  



putting on evidence or arguing fraud at trial.  



          C.         Hawkins's Claim Was Not A "Sham" Claim.  



                     Attatayuk argues that title was not in dispute because, as she repeatedly  



asserted  in  oral  argument,  Hawkins's  claim  was  a  "sham"  claim.    She  argues  that  



                                                                                                                        

Hawkins was required to introduce evidence that his claim was not a "sham" before the  



                                               

superior court could actually adjudicate title.  In her view, Hawkins could not do this  



                                                   

because "[a fraud or ownership] claim would have been barred as a matter of law" since  



"[a] suit to vacate a [federal] patent . . . must be brought within six years of issuance."  



                                                                                                                            

In essence she argues that the court had subject matter jurisdiction because there was no  



viable  objection  to  her  restricted  deed  because  Hawkins's  ability  to  challenge  her  



restricted townsite deed was barred by the statute of limitations.  Thus, she asks this court  



                                                                                    

to look behind the jurisdictional curtain and find that Hawkins has no viable claim by  



                                                                                   

doing precisely what 28 U.S.C.  1360(b) forbids - adjudicating any possible defense  



Hawkins  might  have  to  her  restricted  townsite  deed,  or  adjudicating  her  statute  of  



                                                                                                           

limitations defense to Hawkins's fraud claim.  As we have explained, state courts do not  



have  jurisdiction  to  adjudicate  disputes  regarding  restricted  title,  and  this  includes  



                                                                                                             

passing judgment on the viability of an underlying claim of restricted title or a defense  



to that claim.  Attatayuk asks us to examine the merits of Hawkins's defenses to her  



restricted townsite deed in order to find that the superior court had jurisdiction.  Such an  



                                                                                       

argument  is  untenable.    If  the  superior  court  lacked  subject  matter  jurisdiction  to  



                                                                           

adjudicate title to the restricted townsite deed, it lacked jurisdiction to adjudicate any  



aspect of the deed's validity.  



                                                                -10-                                                          6888
  


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

V.        CONCLUSION  



                   We conclude that the superior court adjudicated title to restricted township  

                                                 



land  and  thereby  acted  without  subject  matter  jurisdiction.    We  REVERSE  and  

REMAND with directions to the superior court to DISMISS the case.21  



         21        In  light  of  this  disposition,  the  award  of  attorney's  fees  in  favor  of  



Attatayuk must be vacated.  Hawkins is the prevailing party and is entitled to an award  

                                                                                          

of attorney's fees in the superior court. See Foster v. State, Dep't of Transp., 34 P.3d  

 1288,  1291  (Alaska  2001)  ("[W]e  hold  that  the  court  could  award  .  .  .  costs  and  

                                                                                

attorney's  fees  under  Civil  Rules  79  and  82,  even  after  it  concluded  that  it  lacked  

jurisdiction over [the] claims.").  



                                                         -11-                                                      6888  

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