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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Simmonds v. Parks (7/18/2014) sp-6926

Simmonds v. Parks (7/18/2014) sp-6926

         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  



ROZELLA SIMMONDS and                                  )  

JEFF SIMMONDS,                                        )        Supreme Court No. S-14103  

                                                      )  

                  Petitioners,                        )        Superior Court No. 4FA-09-02508 CI  

                                                      )  

         v.                                           )        O P I N I O N  

                                                      )  

EDWARD PARKS and                                      )        No. 6926 - July 18, 2014  

BESSIE STEARMAN,                                      )  

                                                      )  

                  Respondents,                        )  

                                                      )  

         and                                          )  

                                                      )  

STATE OF ALASKA,                                      )  

                                                      )  

                  Intervenor-Respondent.              )  

                                                      )  



                  Petition for Review from the Superior Court of the State of  

                  Alaska,  Fourth  Judicial  District,  Fairbanks,  Paul  R.  Lyle,  

                  Judge.  



                  Appearances:  Erin  C.  Dougherty,  Natalie  A.  Landreth,  

                  Heather Kendall-Miller, and Matthew N. Newman, Native  

                  American Rights Fund, Anchorage, for Petitioners. Jason A.  

                                                                                          

                  Weiner,       Gazewood         &     Weiner,       P.C.,    Fairbanks,       for  

                  Respondent  Parks.    Michael  J.  Wenstrup,  Fairbanks,  for  

                  Respondent   Stearman.               Mary      Ann   Lundquist,   Senior  

                  Assistant  Attorney  General,  Fairbanks,  Julie  Fields  and  

                  Jacqueline Schafer, Assistant Attorneys General, Anchorage,  

                  and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  

                  Intervenor-Respondent.  Marguerite Humm, Holly Handler,  

                                                     


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

                   and Sydney Tarzwell, Alaska Legal Services Corporation,  

                   Anchorage, for Amici Curiae Kenaitze Indian Tribe, Native  

                                                     

                   Village  of  Eek,  Stony  River   Traditional  Council,  Native  

                   Village   of   Mekoryuk,   Umkumiut   Tribal   Council,   and  

                   Tuntutuliak Traditional Council.  



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

                                

                   Bolger, Justices.  



                   FABE, Chief Justice.  



I.        INTRODUCTION  



                   The Minto Tribal Court terminated the parental rights of Edward Parks and  



Bessie Stearman to their daughter S.P. At the termination hearing, the attorney for Parks  

                                                             



and Stearman was not permitted to present oral argument to the tribal court.  Parks failed  

                                 



to file an appeal with the Minto Court of Appeals and instead brought suit against S.P.'s  

                                                           



foster parents, the Simmondses, in the state superior court in an attempt to regain custody  



of S.P.  The Simmondses moved to dismiss Parks's state lawsuit on the basis that the  



tribal court judgment terminating parental rights was entitled to full faith and credit under  

                                                                            



the  Indian  Child  Welfare  Act.    The  superior  court  denied  the  motion  to  dismiss,  

                                        



concluding that full faith and credit should not be afforded because the tribal court had  

                                                                                                                 



denied Parks minimum due process by prohibiting his attorney from presenting oral  

                                                                                                        



argument on his objections to tribal court jurisdiction based on his status as a non-tribal  



                                                                                                                     

member.   Although the superior court recognized that oral argument is not a per se  



                                                                                                       

requirement of minimum due process, the superior court concluded that the denial of oral  



                                 

argument in this case deprived Parks of a meaningful opportunity to be heard because  



Parks did not receive sufficient notice that his attorney would not be allowed to present  



oral argument to the tribal court.  



                                                             -2-                                                      6926
  


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                      The Simmondses petitioned this court for review.  We remanded to the  



                          

superior court for further findings.  On remand, the superior court reiterated its prior  



conclusion of a violation of minimum due process and further concluded that the due  



                                     

process error was not harmless because Parks's objections to the Minto Tribal Court's  



jurisdiction  might  have  had  merit.    The  Simmondses  brought  a  second  petition  for  



                                                                

review, and we again granted review.  Because Parks failed to exhaust his remedies in  



the Minto Court of Appeals, we conclude that his state court suit should have been  



dismissed.  We thus reverse the superior court's decision and remand for dismissal of  



Parks's suit.  



II.        FACTS AND PROCEEDINGS  



           A.         Tribal Affiliations Of S.P. And Her Parents  



                                                                                                              

                      This petition is the culmination of almost six years of litigation involving  



                                                

custody of S.P., the parental rights of her parents, Edward Parks and Bessie Stearman,  



and the jurisdiction of the Minto Tribal Court.  Stearman is a member of the Native  



                                                                                                          1  

                                                                                                             She was raised and  

Village of Minto, a federally recognized tribe in Minto, Alaska. 



                                                                       

resided in Minto until 2001.  Parks  is  an  enrolled member of the Native Village of  



                                                                                                       2  

                                                                                                          Parks is not a member  

 Stevens, a federally recognized tribe in Stevens Village, Alaska. 



of the Native Village of Minto and has never lived in or been a resident of Minto.  



                      The Minto Tribal Constitution provides that lineal descendants of tribal  



                                                                                                           

members are "automatically eligible to be members of the Minto Tribe," and the Minto  



                      

Tribal Court concluded on a number of occasions that "[u]nder the tribal constitution of  



Minto [S.P.] is a Minto tribal member under the jurisdiction of the Tribal Court and  



           1          Indian  Entities   Recognized  and  Eligible   to  Receive   Services  from  the  



Bureau of Indian Affairs, 77 Fed. Reg. 47,868, 47,872-73 (Aug. 10, 2012) (providing the     

current list of federally recognized tribes).  



           2          Id.  We refer to the Native Village of Stevens as Stevens Village.  



                                                                    -3-                                                                  6926  


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

eligible to apply for enrollment."  In November 2008, during the course of the Minto   



Tribal Court's custody proceedings, S.P. was formally enrolled in the Native Village of   



Minto after Stearman submitted a tribal enrollment application on her behalf.  



           B.          The Minto Tribal Court Took Emergency Custody Of S.P. 



                         S.P. was born in December 2007 in Fairbanks.  S.P.'s mother, Bessie   



Stearman, has a history of substance abuse and arrests, and her three older children,   



S.P.'s  half-siblings,  were  in  Minto  Tribal  Court  custody  prior  to  S.P.'s  birth.    On  



                                                                                  

December 7, 2007, Mishal Gaede, a tribal social worker in the Child Protection Services  

Department of the Tanana Chiefs Conference,3 received a phone call from a screener  



from the Office of Children's Services (OCS) asking her if she would be willing to meet  



                                                                                    

an OCS staff member and Stearman at Fairbanks Memorial Hospital to develop a safety  



                         

plan for S.P.  Gaede, who had previously contacted the Minto Tribal Court regarding  



                                                                                                               

Stearman's pregnancy, agreed to meet with the OCS staff member and Stearman.  During  



                                                                                                                 

the meeting, Gaede informed Stearman of the Minto Tribal Court's concern about S.P.'s  



safety given Stearman's history and the domestic violence history of Edward Parks,  



S.P.'s presumed father.  



                       On May 30, 2008, Stearman contacted Rozella Simmonds and asked if she  



                                                                                   

and  her  husband,  Jeff  Simmonds,  would  care  for  S.P.,  then  six  months  old,  while  



                                                                                          

Stearman was incarcerated for violating probation.  Jeff Simmonds is Stearman's first  



                                                                                                                      

cousin and is eligible for enrollment in the Native Village of Minto.  The Simmondses  



agreed, and Rozella informed Gaede of the arrangement.   



                                                                                                                          

                       On June 2, 2008, Gaede informed the Minto Tribal Court of the situation  



via teleconference, and the tribal court took emergency temporary legal custody of S.P.,  



           3           The Tanana Chiefs Conference is a tribal consortium of Alaska Native  



Villages in Interior Alaska, including the Native Village of Minto.  TANANA  CHIEFS  

CONFERENCE , http://tananachiefs.org (last visited July 14, 2014).  



                                                                       -4-                                                                     6926  


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

made  her  a  ward  of  the  court,  and  temporarily  granted  physical  custody  to  the  



Simmondses.  Parks and Stearman were granted supervised visits with S.P. at the Tanana  



Chiefs Conference office in Fairbanks.  



                                                             

                    Parks was working on the North Slope and was not contacted prior to the  



                                                                                                     

June 2, 2008 emergency hearing. The day after the hearing, Gaede spoke with Parks and  



                                                              

mailed the emergency custody order to Parks's employer in Prudhoe Bay.  On June 6  



                                                                                                                     

Parks called Gaede to ask for his daughter back; Gaede informed him that she was in the  



                                                                                                      

Simmondses' custody and that he could petition the tribal court for an earlier hearing or  



                                                         

to arrange visitation with S.P.  Parks called back later that day and indicated that he and  



Stearman were "okay" with S.P. being with the Simmondses for the time being.  



                                                     

          C.	       Parks Was Notified Of The Minto Tribal Court's Second Hearing On  

                    Custody Of S.P., But He Did Not Attend.  



                                                                             

                    The Minto Tribal Court held another hearing regarding temporary custody  



                  

of  S.P.  on  July  9,  2008.    Stearman,  Rozella  Simmonds,  Gaede,  and  Evelyn  Parks,  



                                                                                                        

Edward Parks's mother, were present via teleconference.  The tribal court records from  



                                                                                                     

this hearing indicate that Stearman was given written notice of the hearing, was present  



                                                                                                           

at the hearing, and testified about her incarceration and rehabilitation efforts.  Edward  



                                  

Parks was also given written notice of the hearing, but he was not present.  The tribal  



court's contemporaneous notes indicate that Parks was sick and "home in bed."  His  



                                                                                                   

mother, Evelyn, did address the tribal court, asking that S.P. be placed in her custody  



while Stearman was incarcerated; she also stated that Edward Parks had supported S.P.  



                                                                                                             

and questioned why she had not been contacted to take S.P.  The tribal court informed  



                                                                     

her that she needed to complete a foster care application and a home safety check prior  



                                                                         

to placement, per tribal foster care policy and  federal regulations; she was given an  



                                    

application.  The notes also indicated that the tribal court would notify Stevens Village  



as a courtesy.  



                                                               -5-	                                                        6926
  


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

                                                                     

                    The Minto Tribal Court's order reiterated the court's jurisdiction over S.P.  



                                                                                                                     

The tribal court found that Parks's residence in Fairbanks was unsuitable for an infant;  



                                                                                               

that it was in S.P.'s best interests for the tribal court to continue temporary legal custody;  



                                        

and that it was in her best interests for the Simmondses to continue temporary physical  



                      

custody.  The tribal court required that Stearman continue with her rehabilitation efforts  



and that Parks obtain an anger management assessment, follow its recommendations, and  



prepare safe, suitable housing for an infant.  



          D.	       The Minto Tribal Court Held Its Third Hearing.  Parks Attended,  

                                                                                                                                   

                    Participated, And May Have Objected To The Court's Jurisdiction.  



                                       

                    The Minto Tribal Court held a hearing on temporary custody of S.P. on  



August  28,  2008,  in  which  Parks  participated  telephonically  after  receiving  written  



                                      

notice.  Parks stated that he wanted his daughter back; the tribal court's order stated that  



                                                                                     

while Parks agreed with the current foster placement, he thought S.P. could be cared for  



                                                                             

just as properly by his relatives in Anchorage.  He also testified about a recent incident  



with  the  Fairbanks  police  and  about  an  arrest  warrant  for  a  January  2008  domestic  



violence  incident  with  Stearman.    The  tribal  court  issued  an  order  continuing  the  



                  

temporary custody arrangements and repeating its requirement that Parks obtain and  



follow the recommendations of an anger management assessment, prepare a suitable  



home, and complete parenting classes.   



                                                                                                                        

                    Parks claims that he "told the members of the Minto Tribal Court that the  



                                                                                                                          

Minto Tribal Court had no legal authority to involve itself in matters relating to the  



                                                                                    

custody of S.P."  There is no mention of this objection to the tribal court's authority in  



the court's hearing notes.  



                    After  the  August  hearing,  Parks  maintained  contact  with  Gaede,  who  



offered  to  help  him  write  letters  to  Stevens  Village  and  to  the  Minto  Tribal  Court  



                                                                                                            

requesting help in paying for an anger management assessment.  Gaede also gave Parks  



                                                               -6-	                                                        6926
  


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

                           

a  petition  to  ask  the  tribal  court  to  modify  its  requirements.    Later,  Parks's  regular  



visitation with S.P. was suspended by a temporary protective order issued by the tribal  



court after Parks exhibited angry and aggressive behavior with Gaede.  



          E.	       Parks Filed A Petition With The Minto Tribal Court To Expedite The  

                                                                           

                    Custody Case.  The Court Held Its Fourth And Fifth Hearings.  Parks  

                    Attended,   Participated,   And   Clearly   Objected   To   The   Court's  

                    Jurisdiction.  



                                                        

                    On November 4, 2008, Parks filed a petition with the Minto Tribal Court  



to  resume  regular  visitation  with  S.P.  and  to  expedite  the  custody  case  "as  soon  as  



reasonably possible."  On December 8, 2008, the tribal court held another temporary  



                                                                                                        

custody  hearing.    Parks  was  given  written  notice  of  the  hearing  and  participated  



                                                                             

telephonically.  Stearman was provided with notice of the hearing but did not participate  



                                                                                     

due to her incarceration.  Parks's mother, Evelyn, and a Stevens Village social worker  



                                                                                     

also participated.  Parks asked that S.P. be returned to his custody; he testified about his  



                                             

work and living situation, his relationship with S.P., the possibility of living with S.P. in  



his sister's home in Anchorage, and anger management classes.  The Stevens Village  



                                                                                  

social worker reported that she had done a home visit at Parks's sister's house and found  



                                                                                                                           

it acceptable; she also asked about the barriers to returning S.P. to Parks's custody.  The  



tribal court concluded that the temporary custody arrangement should continue; the order  



provided for parental visitation and reiterated the court's reunification requirements,  



including the requirement that Parks complete an anger management program.  



                                                                                                                   

          At the hearing, Parks objected to the Minto Tribal Court's jurisdiction, stating, "I  



                             

don't agree w[ith] your jurisdiction over me."  It appears that the tribal court responded  



by advising Parks to hire a lawyer to apply for an order to show cause.  



                            

                    The tribal court held another hearing on March 25, 2009, in which Parks  



                                                                                                

participated.  Parks again testified and indicated that he could no longer afford the anger  



                     

management program he had begun.  The tribal court continued the temporary custody  



                                                              -7-	                                                       6926
  


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

arrangement and reminded Parks that the tribal court required him to attend and complete  



an anger management program and parenting classes in order to be reunified with S.P.  

                                                                                                



When Parks called the next day, Gaede instructed him to write to the tribal court to  

                                                           



request help in paying for the program; Parks did not request help from the court.  



         F.	       Parks Retained An Attorney, Who Sent A Letter To The Minto Tribal  

                                                                

                   Court  Clerk  In  Which  He  Objected  To  The  Minto  Tribal  Court's  

                                                       

                   Jurisdiction .  



                   Parks retained attorney Donald Mitchell to represent him in his attempts to  



regain custody of S.P.  On April 16, 2009, Mitchell faxed a letter on Parks's behalf to  



Michael Walleri, the general counsel of the Tanana Chiefs Conference, in which Mitchell  



objected to the Minto Tribal Court's jurisdiction:  



                   [I]t  is  my  long-held  view  that  neither  the  Athabascan  

                   residents  of  the  Native  Village  of  Minto  nor  the  Alaska  

                   Native  residents  of  any  other  community  that  Congress  

                   designated  as  a  "Native  village"  for  the  purposes  of  the  

                   Alaska  Native  Claims  Settlement  Act  are  members  of  a  

                   "federally  recognized  tribe"  that  possesses  governmental  

                   authority of any kind, including jurisdiction to involve itself  

                   in child custody matters.  



                   . . . .  



                   [P]lease be advised that if [the Tanana Chiefs Conference]  

                   does  not  arrange  for  Mr.  Parks  to  be  reunited  with  his  

                                                                             

                   daughter I will file a civil action in the U.S. District Court  

                   against  the  Native  Village  of  Minto,  [the  Tanana  Chiefs  

                   Conference], Jeffrey and Rozella Simmonds, and - if it turns  

                                                                                            

                   out that it participated with [the Tanana Chiefs Conference]  

                                  

                   in placing [S.P.] in the clutches of the Tribal Court for the  

                                                                                              

                   Native Village of Minto - the Office of Children's Services.  

                                                          

                   That action will seek declaratory and injunctive relief and  

                   money damages and it will decide once and for all whether,  

                                                          

                   in Alaska, Tribal Courts are the ersatz institutions that I and  

                   many others believe them to be.  



                                                           -8-	                                                   6926
  


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

                    Mitchell also sent this letter to Lori Baker, who serves as the Chief of the  

                                                                                       



Native Village of Minto and the Clerk of the Minto Tribal Court.  



          G.	       Parks And Stearman Removed S.P. From Her Foster Home On The  

                                                                                                                        

                    Advice Of Mitchell.  S.P. Was Returned Under Police Escort.  



                    On May 5, 2009, Parks and Stearman went to the Simmondses home while  

                                                                              



Jeff and Rozella were out and removed S.P., leaving another letter written by Mitchell.  

                                                                                                       



Rozella Simmonds informed Gaede, who contacted the Fairbanks police and reported  



that a foster child in Minto Tribal Court custody had been abducted.  A police officer  

                                                                                           



stopped the car in which Parks and Stearman were transporting S.P.  Parks returned to  

                                                                               



the  Fairbanks  police  station  with  a  police  escort,  and  S.P.  was  returned  to  the  

                                                        



Simmondses.  



                    Parks and Stearman took S.P. from the Simmondses' home on the advice   



of Mitchell.  Mitchell's second letter, which was left at the Simmondses' home, was  



                   

dated  May  4,  2009,  and  copied  to  Walleri,  Gaede,  OCS,  and  the  Fairbanks  Police  



Department.  In the letter, Mitchell wrote:  



                                                                                                    

                     [T]he Minto Tribal Court has no legal jurisdiction of any kind  

                                                              

                    to   invent   its   own   child   custody   proceedings.      And   it  

                                                                              

                    particularly has no jurisdiction of any kind to involve itself in  

                    matters relating to the custody of [S.P.].  



                     . . . .  



                                                                                           

                    For that reason, please be further advised that I have advised  

                                                                                      

                    Mr. Parks and Ms. Stearman that they have the parental rights  

                    that  the  Alaska  statutes  grant  to  them  to  have  physical  

                    custody of their daughter . . . .  Acting on that advice, they  

                    have taken physical custody of [S.P.] . . . .    



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

          H.	      The Minto Tribal Court Held A Parental Rights Termination Hearing.  

                   Parks Was Represented By Mitchell At The Hearing, But Mitchell  

                   Was  Not  Permitted  To  Directly  Address  The  Court.                                 The  Court  

                                                                                                            

                   Terminated The Parental Rights Of Parks And Stearman.  



                   On May 7, 2009, the Minto Tribal Court held a hearing on termination of  



the parental rights of Parks and Stearman.  Both Parks and Stearman received notice of  

                                                                               



the hearing and attended via teleconference from Fairbanks.  Parks's attorney, Mitchell,  

                                                                                                   



also attended.    



                                                                                            

                   Before the hearing, a Tanana Chiefs Conference staff member informed  



                                                                                                                

Parks that the tribal court would not permit his attorney to directly address the tribal  



                                   

court; only the parties, their witnesses, or lay advocates were permitted to address the  



tribal court.    



                   Parks acknowledges receiving this information, and he did not object to this  



restriction on his attorney's participation during the May 7 hearing.  He also did not  



object to the tribal court's jurisdiction at this hearing.  



                   At the May 7 hearing, Parks and Stearman testified on their own behalf, and  



Evelyn Parks and the Stevens Village social worker also testified on behalf of Parks.  



                                                                                                    

Mitchell was present at the hearing and permitted to speak with Parks and Stearman, but  



he was not permitted to speak directly to the tribal court.   



                   The tribal court's May 7 order noted that Parks had failed to complete an  



                                                                                                         

anger management program, which was a requirement for reunification, and that Parks  



                                     

continued to be a threat to tribal staff and to the Simmondses, which had resulted in  



multiple tribal court protective orders against him.  The tribal court concluded that "[b]y  



                                                                   

clear and convincing evidence, it is in the best interest of [S.P.] to terminate the parental  



                                                                                

rights of [Stearman and Parks] due to failure to provide a suitable home and support for  



[S.P.]  and  the  volatile  nature  of  [Parks]."    A  subsequent  tribal  court  order  granted  



permanent custody of S.P. to the Simmondses.  



                                                           -10-	                                                     6926
  


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

           I.         The Notice Given To Parks Prior To The May 7 Hearing Is Disputed.   



                      The parties dispute whether Parks and Stearman were notified of the Minto   



Tribal Court's limitation on attorney participation prior to the May 7   hearing.  It is  



undisputed that by the time of that hearing, Parks had been given written notice of four  



previous hearings conducted by the tribal court and personally participated in three of  



                                                      

them.  He had also presented at least one oral objection to the tribal court's jurisdiction  



over  him,  and  his  attorney  had  submitted  a  letter  which  detailed  his  jurisdictional  



objections to the Minto Tribal Court Clerk.  



                      The Minto Tribal Court's written Notice of Hearing informs litigants that  



                                                                                                  

"YOU HAVE THE RIGHT TO PRESENT WITNESSES, PRESENT YOUR SIDE OF  



                                        

THE CASE, AND TO QUESTION ANY WITNESSES.  Any paperwork or evidence  



you wish the court to consider in the hearing may be sent to the [Minto Tribal Court]  



address."  Parks also received verbal notice of the hearings.    



                                                                                                              

                      In a sworn declaration, Lori Baker, the Minto Tribal Court Clerk, detailed  



the court's general notice procedures and the particular notice given to Parks:  



                      8.         According to our ordinances, we are permitted to give  

                      verbal notice of hearings.  When I do this, I tell the parties  

                      that they can bring their attorneys to the court, that they can  

                      bring papers or evidence or send them in advance, that the  

                                                                                

                      attorneys can talk to their clients in the court, but that the  

                      Court itself may not allow the attorneys to speak to the court.  



                      9.         I  worked  on  the  case  with  Mr.  Parks  and  I  have  

                      specific  memories  of  providing  him  with  verbal  notice  of  

                      hearings on several occasions.  I told him the same things that  

                      I always tell parties that I described in the paragraph above.  



                      Baker's declaration also discussed the rationale underlying the tribal court's  



                                                 

policy that permits attorneys to be present at hearings and to advise their clients but not  



to speak directly to the judges:  



                                                                     -11-                                                              6926
  


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

                   First, this is our tradition, our way of solving disputes, and  

                   we  have  always  done  things  this  way.    Our  judges  solve  

                   problems  by  speaking  directly  to  the  people  involved.  

                   Second,  professional  attorneys  have  an  approach  that  is  

                                                                                              

                   aggressive and confrontational and is not appropriate for our  

                                                                                               

                   court; we do not permit our judges to be spoken to in this  

                   way.  Third, our judges are elders or other respected people  

                   in the Tribe, but none of them are trained lawyers so they do  

                                                   

                   not  understand  legal  terminology.    Instead,  our  judges  

                   implement traditional law and make decisions based on our  

                                                               

                   laws and values.  



                   Gaede, who participated in all of the tribal court hearings regarding S.P.,  



further commented on the tribal court's policy:  "Lawyers are allowed to sit in on the  

                                                



hearings and to talk to their clients and to write notes to them during the hearings.  The  

                                                                                                                     



only restriction I have seen on the lawyers in this region is that tribal courts may not  



allow them to speak directly to the judges."  



         J.	       Parks Received Information On Appealing To The Minto Court Of  

                   Appeals.  Parks Did Not File An Appeal.                             



                   Shortly  after  the  termination  of  his  parental  rights,  Parks  requested  



information on written Minto law regarding the tribal court and parental rights.  He was  

                                                                                                                 



sent the applicable Minto Tribal Court judicial code, information on the Minto Court of  

                            



Appeals, and a blank appellate petition form.   



                   The current Minto Judicial Code (dated July 22, 2010) details the tribal  



court appellate process and provides that "[t]he purpose of the Minto Court of Appeals  

                                                                                                   



is not to re-hear cases, but to review cases for possible inconsistent application of tribal  



law and/or violations of fundamental fairness."  An earlier version of the judicial code  

                                                      



was provided to Parks in 2009.  Parks does not dispute receiving the blank appellate  

                                                                                 



petition form and information on the Minto Court of Appeals.   



                                                          -12-	                                                    6926
  


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

                    The information sent to Parks provided instructions on how to file an appeal  



with the Minto Court of Appeals, including the instruction to file a "brief statement of  



why the Appellant believes that the Order deserves a hearing by the Minto Court of  



               4  

Appeals."   (Emphasis omitted.)  There were no page limits or substantive restrictions  



placed  on  the  appellant's  statement  of  appeal,  and  there  was  no  restriction  on  the  



participation of an attorney in preparing the statement of appeal.  



                   Parks did not file an appeal with the Minto Court of Appeals.  



          K.	       Parks Brought Suit In Federal District Court And Alaska Superior  

                                                                                              

                    Court To Regain Custody Of S.P.  The Federal Case Was Dismissed.  



                    On May 12, 2009, five days after the termination of his parental rights,  



                                                                                                    

Parks, represented by Mitchell, filed a declaratory judgment action in the U.S. District  



                                                                                    

Court for the District of Alaska.  The gravamen of Parks's federal complaint was that the  



                                                                                                   

Native Village of Minto is not a federally recognized tribe, despite explicit recognition  



as  such  by  the  federal  government,  and  that  it  therefore  did  not  have  authority  to  



establish a tribal court or involve itself in child custody matters.   



                    On  September  17,  2009,  Parks  also  filed  a  complaint  with  the  Alaska  



Superior Court in Fairbanks requesting physical custody of S.P.   



                    The federal district court concluded that the Native Village of Minto is a  



federally recognized tribe and "that the Native Village of Minto and the State of Alaska  



have concurrent jurisdiction as to child custody matters such as are raised in the tribal  



                                            5  

                                                 The  federal  district  court  concluded  that  abstention  

and  state  court  proceedings."                                   



          4         The Minto Judicial Code was revised and the 2010 version stated that "[t]he       



Notice of Appeal shall contain a statement of why the Appellant believes that the case  

should come before the Minto Court of Appeals."  



          5        S.P. ex rel. Parks v. Native Village of Minto, No. 3:09-CV-0092 HRH, 2009  



WL 9124375, at *7 (D. Alaska Dec. 2, 2009).  



                                                            -13-	                                                      6926
  


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

                                                                                                                   6  

principles  applied  and  dismissed  Parks's  federal  complaint  with   prejudice.     Parks  



appealed this dismissal to the U.S. Court of Appeals for the Ninth Circuit, where the   

dismissal was affirmed.7  



          L.	       The Native Village Of Minto And The Minto Tribal Court Moved To  

                                                                                 

                    Dismiss The Superior Court Case.  The Superior Court Denied The  

                    Motion  To  Dismiss,  Concluding  That  The  Minto  Tribal  Court's  

                    Judgment Was Not Entitled To Full Faith And Credit Because Parks  

                                                                              

                    Had Been Denied Minimum Due Process When His Attorney Was Not  

                                                                 

                    Permitted To Directly Address The Tribal Court.  



                    In the state superior court proceeding, the Native Village of Minto and the  

                                                                                                        



Minto Tribal Court moved that "[f]ull faith and credit and/or comity should be given to  

                                                                       

the Orders of the Minto Tribal Court" under the Indian Child Welfare Act (ICWA)8 and  

                                                                                                       



that Parks's complaint should be dismissed with prejudice.  In his opposition to the  



motion to dismiss, Parks, represented by Mitchell, repeated his argument that the Native  

                                                                                             



Village of Minto is not a federally recognized tribe and that the superior court should  

                                       



disregard precedent to the contrary from the U.S. District Court, the Ninth Circuit, and  



the Alaska Supreme Court.    



                    The  superior  court  denied  the  motion  to  dismiss.    The  superior  court  



                                                                                      

commented that "Parks'[s] jurisdictional objections to the exercise of tribal authority in  



                                                                                                                      

this case are complex, esoteric, rooted in a complicated history and well beyond the ken  



                                                             

of  most  lay  people  or  lay  advocates  to  understand  or  explain."    The  superior  court  



                                                                     

concluded that "[w]hen Parks'[s] attorney was prohibited from speaking at the outset of  



                                                                                                         

the  termination  trial,  Parks  was  denied  a  meaningful  opportunity  to  present  his  



          6        Id. at *7-8.  



          7         S.P. ex. rel. Parks v. Native Village of Minto, 443 F. App'x 264, 266 (9th  



Cir. 2011).  



          8         25 U.S.C.  1901-1963 (2012).  



                                                             -14-	                                                      6926
  


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

jurisdictional objections to the exercise of Minto's tribal authority.  Therefore, he was  



denied minimum due process under the U.S. and Alaska Constitutions."  The superior  



                                                                                     

court concluded that because of this due process violation, full faith and credit could not  



be afforded to the Minto Tribal Court's order terminating Parks's parental rights.  



                                                                                                  

         M.	      The  Simmondses  Petitioned  This  Court  To  Review  The  Superior  

                  Court's Denial Of Their Motion To Dismiss.  We Granted The Petition  

                  And Remanded To The Superior Court.  



                                                                                       

                  The Simmondses, now represented by the Native American Rights Fund,  



filed a petition for review by this court, asking us to review the superior court's due  



process and full faith and credit conclusions.  We granted the petition and remanded the  



                                         

case to the superior court to develop the evidentiary record and to make findings and  



conclusions on a number of specific questions regarding the tribal court proceedings,  



                                                                                      

including whether Parks was given an opportunity to make his jurisdictional arguments  



                  

on his own or in writing; why Parks was not allowed oral argument by counsel and  



                            

whether that denial amounted to a due process violation; whether the proceedings were  



                             

recorded, and if not, why not; and whether any possible due process violations could be  



characterized as harmless error, particularly in light of our decision in State v. Native  



                          9 

                            which addressed certain aspects of tribal court jurisdiction and the  

 Village of Tanana,  



possible application of full faith and credit under ICWA.  



                                                                                      

         N.	      On Remand The Superior Court Concluded  That Parks Had Been  

                  Denied Minimum Due Process And That The Denial Could Not Be  

                  Considered  Harmless  Error  Because  It  Was  An  Open  Question  

                  Whether The Minto Tribal Court Had Jurisdiction Over Parks As A  

                  Nonmember.  



                  No  party  requested  an  evidentiary  hearing  on  remand.    The  parties  



submitted supplemental briefing, and the superior court held oral argument.  The superior  



         9        249 P.3d 734 (Alaska 2011).  



                                                        -15-                                                     6926  


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

                                                                                                               

court again refused to dismiss the case and concluded that the Minto Tribal Court's  



                                                   

judgment was not entitled to full faith and credit under ICWA because Parks "was denied  



a meaningful opportunity to be heard on his jurisdictional challenges."   



                                                                                              

                     The superior court concluded that "an essential element of due process [is]  



                                                                                          

the right to be meaningfully represented by counsel at all stages of the [parental rights  



termination] proceedings, at least where the parties retain counsel" and that "Parks'[s]  



                                      

attorney was not given an opportunity to speak (orally or in writing) for Parks at any  



                                                                                                                         

stage  of the  proceedings."                 The  superior  court found  that Parks's  attorney  was  not  



                                       

permitted oral argument at the May 7 termination hearing; the superior court also found  



                       

that although Parks's attorney was permitted to submit written arguments to the tribal  



                                                        

court, there were factual disputes as to whether Parks had notice of this right and whether  



                                                                                               

the tribal court ever received Parks's attorney's April 16 letter, which had been submitted  



                                                                                     

to the tribal court clerk.  The superior court found that the tribal court's written notices  



                                                      

of hearing were "deficient in that they do not advise litigants that lawyers will not be  



                                                                                            

permitted to speak to tribal judges.  More importantly, the written notices do not state  



that legal arguments may only be presented in writing."  The superior court's finding that  



Parks's attorney was not given an opportunity to submit written argumentation was key  



to  its  denial  of  full  faith  and  credit  because  the  superior  court  also  concluded  that  



"[m]inimal due process does not require the opportunity for oral argument."  



                     The  superior  court  also  addressed  the  issue  whether  any  due  process  



                                                                        

violations were harmless beyond a reasonable doubt if Parks's jurisdictional arguments  



                                                                                      

lacked merit.  The superior court concluded that Parks's argument that the Native Village  



                

of Minto is not a federally recognized tribe, which was the primary basis for Parks's  



                                                                                                                      

jurisdictional objection throughout the multiple litigations, was definitively rejected in  



                                                                -16-                                                         6926
  


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

                                    10                     11 

John v. Baker (John I ),   In re C.R.H. ,                     and, most recently, McCrary v. Ivanoff Bay  



            12  

 Village.       Similarly, the superior court concluded that Parks's argument that Alaska  



                                               

tribes  were  entirely  without  authority  to  initiate  ICWA-defined  child  protection  



                                                                 

proceedings outside of Indian Country was definitively rejected by this court in State v.  



                                       13  

Native Village of Tanana .  



                                                      

                    But the superior court concluded that "the due process violations were not  



                            

harmless beyond a reasonable doubt on the still-undecided issues of:  (1) the scope of  



tribal  inherent  authority  to  initiate  ICWA-defined  parental  rights  termination  action  



                                                                                           

against a nonmember parent, (2) whether parents may object to tribal court jurisdiction  



                                                                                                                      14  

                                                                                                                          The  

in such cases[,] and (3) whether Parks had minimum contacts with the tribe." 



superior  court's  decision  included  an  extensive  discussion  of  the  subject  matter  



                                                                                        

jurisdiction of tribal courts based on its interpretation of the United States Supreme  



                                                                  15  

                                                                      The superior court concluded that "there  

Court's decision in Montana v. United States .  



                                                      

is arguably an open question after John v. Baker concerning whether a child's tribal  



membership  (or  eligibility  for  membership)  is,  standing  alone,  a  sufficient  basis  for  



                                                                  

jurisdiction  where  one  of  the  parents  is  a  non-consenting  nonmember  of  the  tribe."  



                                                                                                            

(Emphasis  in  original.)              The  superior  court  therefore  concluded  that  "[i]t  was  not  



                                      

harmless error beyond a reasonable doubt for the Minto Tribal Court to have failed to  



          10        982 P.2d 738, 749-50 (Alaska 1999).
  



          11        29 P.3d 849, 851 n.5 (Alaska 2001).
  



          12        265 P.3d 337, 339-42 (Alaska 2011).
  



          13        249 P.3d at 750-52.  



          14        Cf.  id.  at   751-52  (expressly  leaving  these  questions  open  for  later  



consideration).  



          15        450 U.S. 544 (1981).  



                                                             -17-                                                        6926
  


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

provide a meaningful opportunity for Parks to challenge Minto's jurisdiction over him  

                                                                                     



based on his lack of membership in the tribe."  



          O.	       The Simmondses Brought A Second Petition To Review The Superior  

                    Court's Minimum Due Process And Jurisdictional Conclusions.  We  

                                                                                                     

                    Granted The Petition.  



                    The Simmondses brought a second petition for review, asking this court to  

                                                                                         



reverse  the  superior  court's  refusal  to  give  full  faith  and  credit  to  the  Minto  Tribal  

                                                                          



Court's judgment and dismiss Parks's state court suit; in particular, the Simmondses  



asked this court to reverse the superior court's conclusions on due process and tribal  

                              



court jurisdiction.  The State of Alaska intervened in support of review and in support  



of affirming the superior court's order. We granted the second petition on the following  

                                                           



questions:  



                    (1)      Did  the  Minto  Tribal  Court  have  subject  matter  

                   jurisdiction to terminate Parks's parental rights?  



                    (2)      Did the Minto Tribal Court have personal jurisdiction  

                                                              

                    over Parks and S.P.?  Did Parks consent to the jurisdiction of  

                                                                               

                    the Minto Tribal Court?  Did Parks as a non-[tribal member]  

                                                                            

                    parent  have  the  right  to  transfer  his  case  from  the  Minto  

                                                                                             

                    Tribal Court to state court?  



                    (3)        Did  the  Minto  Tribal  Court  provide  Parks  with  a  

                    meaningful opportunity to present his case when it refused to  

                                                                                            

                    let his attorney speak for him in the tribal court?  



                    (4)      Did   the   Minto   Tribal   Court   provide   Parks   with  

                                                       

                    adequate notice that his attorney would only be able to make  

                                                                                                 

                    arguments by submitting them in writing beforehand?  



                    (5)      If Parks was denied a meaningful opportunity to be  

                                           

                    heard  in  the  tribal  court,  was  the  denial  prejudicial  if  the  

                                                                                                    

                    Minto Tribal Court had jurisdiction?  



                    (6)      What effect, if any, does Parks's failure to exhaust his  

                    remedies  by  appealing  in  the  tribal  court  have  on  his  due  

                                                                           

                    process claim?  



                                                             -18-	                                                      6926
  


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

                    (7)      Was the issue of jurisdiction fully and fairly litigated  

                   in the Minto Tribal Court?  



                                                                                               

                    (8)      If the tribal court order is not entitled to full faith and  

                    credit, what is the appropriate remedy?  If the tribal court  

                    order is vacated, should the instant action be converted to a  

                    [Child-in-Need-of-Aid] proceeding, remanded to the Minto  

                    Tribal  Court  for  further  proceedings,  or  remanded  to  the  

                    superior court?  



                                                                                  

                   Parks and Stearman are Respondents to the petition, and the State of Alaska  

is  Intervenor-Respondent.16  

                                             A  number  of  Alaska  Native  Villages  collectively  have  



submitted an amicus curiae brief in support of the Petitioners' position that this court  



should reverse the superior court and order dismissal of the state court action.    



III.      STANDARDS OF REVIEW  



                    This case involves questions of both fact and law.  "We review factual  



                           

findings for clear error, and will uphold the superior court's findings unless we are left  



with a definite and firm conviction on the entire record that a mistake has been made,  



                                                                                     17  

even though there may be evidence to support the finding."                               "We evaluate de novo the  



          16       Bessie Stearman was not a party to the original complaint for custody of a       



minor child brought by Parks in the superior court.  At various later stages in the superior  

court proceedings, she has been listed both as a defendant and as a plaintiff.  Stearman  

                                                                                                

did not file a response when the Simmondses petitioned this court to review the superior  

                                                                                                

court's decision on remand, but she did submit briefing and participate in oral argument  

                                                                     

before us.  Stearman adopts  and  relies on the State's and Parks's arguments on the  

                                                   

questions presented in this petition.  



                   Like Parks, Stearman failed to appeal the termination of her parental rights  

                                                                                                 

to the Minto Court of Appeals.  Therefore, our decision - that because Parks failed to  

                                                

exhaust available tribal court appellate remedies, he is not permitted to relitigate his  

                                                                                                            

minimum  due  process  and  jurisdictional  claims  in  state  court  -  applies  equally  to  

                       

Stearman.   



          17       John v. Baker  (John II), 30 P.3d 68, 71 (Alaska 2001) (quotation marks  



                                                                                                           (continued...)  



                                                            -19-                                                       6926
  


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

                                                                                                 18  

                                                

scope  of  tribal  jurisdiction  and  the  meaning  of  federal  statutes."                            "Under  de  novo  



                           

review, we apply 'the rule of law that is most persuasive in light of precedent, reason,  



                    19 

                                                                                            

and policy.' "          "When construing statutes that affect the rights of Native Americans, we  



                                                                                                                            20  

                                   

liberally construe these statutes and resolve ambiguities in favor of Native Americans." 



IV.       DISCUSSION  



          A.        Overview  



                    This petition comes before us after the superior court on remand refused to  

                                                            



dismiss Parks's state court action, concluding that the Minto Tribal Court's judgment  



                                                                                    

terminating Parks's parental rights was not entitled to full faith and credit under ICWA's  



              21  

                  because the tribal court violated minimum due process.  The superior court  

 1911(d)                                            



based  its  decision  on  its  conclusion  that  Parks  suffered  "the  complete  denial  of  an  

                                                                                                            



opportunity to be meaningfully heard on the jurisdictional challenges raised in this case."  

                                                           



          17(...continued)  



omitted).  



          18        Tanana, 249 P.3d at 737 (citing John I , 982 P.2d 738,  744 (Alaska 1999)).  



          19       Id . (citation omitted).   



          20       Starr v. George, 175 P.3d 50,  54 (Alaska  2008) (citing John I , 982 P.2d at  



752 (citing Bryan v. Itasca Cnty., 426 U.S. 373, 392 (1976))).  



          21       25 U.S.C.  1911(d) (2012) provides:  



                    The United States,  every State, every territory or possession  

                    of the United States, and every Indian   tribe shall give full  

                    faith  and  credit  to  the  public  acts,  records,  and  judicial  

                   proceedings  of  any  Indian  tribe  applicable  to  Indian  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.  



                                                            -20-                                                       6926
  


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

                                                                                   

(Emphasis in original.)  This conclusion was based on factual findings regarding the  



notice given Parks regarding attorney participation.   



                     Any consideration of a tribal court's judgment in an ICWA-defined child  



custody proceeding must begin with "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' "22 and  



                                                                                                                              

Congress's express finding in ICWA that "there is no resource that is more vital to the  



                                                                                                                   23  

continued  existence  and  integrity  of  Indian  tribes  than  their  children."                                        Through  



                                             

ICWA's full faith and credit clause, Congress mandates that states respect a tribe's vital  



                                                                                                 

and sovereign interests in its children. This requires that we give the same respect to  



                                                                                                         24  

tribal court judgments that we give to judgments from a sister state.                                        As a measure of  



                                                                                                               

that  respect,  we  have  refused  to  allow  a  party  to  collaterally  attack  a  sister  state's  



                                                                                               25  

                                                                                                   Looking to federal law  

judgment when the party failed to appeal in that state's courts. 



                                                                                26  

                                                                                                                    

to interpret ICWA's full faith and credit mandate,                                  we find persuasive the  policies  



           22        John I , 982 P.2d at 751 (quoting                   Merrion v. Jicarilla Apache Tribe , 455  



U.S.  130, 146 (1982)) (omission in original).  



           23        25 U.S.C.  1901(3).  



           24  

                                                       

                     25 U.S.C.  1911(d) ("[E]very State . . . shall give full faith and credit to  

                                                                                

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

                                                                                    

child custody proceedings to the same extent that [it] give[s] full faith and credit to the  

            

public acts, records, and judicial proceedings of any other [State]."); Starr, 175 P.3d at  

55.  



           25  

                                                                                                                          

                     Wall v. Stinson, 983 P.2d 736, 741 (Alaska 1999) ("The remedy for legal  

error is appeal, not collateral attack.").  



           26  

                                                                                                    

                     Starr, 175 P.3d at 57 ("ICWA requires the state to give the same credit to  

                                                                                                                    

tribal court judgments  it gives  to  the  judgments  of the  courts  of sister  states.    We  

                                                                                                                 (continued...)  



                                                                -21-                                                          6926
  


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

underlying the federal doctrine of exhaustion of tribal remedies,27 and we adopt that  



doctrine  in  this  context.    Unless  one  of  the  exceptions  to  the  exhaustion  doctrine  



                                       28  

discussed  below  applies,                 we  will  not  allow  a  party  to  challenge  a  tribal  court's  



                                                 

judgment in an ICWA-defined child custody proceeding in Alaska state court without  



first exhausting available tribal court appellate remedies.  Because Parks failed to exhaust  



available tribal court remedies by appealing to the Minto Court of Appeals, and because  



none of the exceptions to the exhaustion doctrine apply, we conclude that he is not  



                                                                               

permitted to relitigate his minimum due process and jurisdictional claims in Alaska state  



                                  

court.  Therefore, we accord full faith and credit to the Minto Tribal Court's judgment  



                                                                                                                       

terminating Parks's parental rights, and we reverse, remanding to the superior court to  



order dismissal of Parks's state court action.   



          26(...continued)  



therefore look to the federal Full Faith and Credit Clause and the implementing federal  

                                                                            

statute, which require the state to give full faith and credit to the judgments of the courts  

                                                   

of sister states, for guidance in determining whether the tribal court resolutions meet the  

requirements entitling them to full faith and credit under ICWA." (citations omitted)).  



          27  

                                                                      

                    Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians , 471 U.S. 845, 856  

(1985) ("Our cases have often recognized that Congress is committed to a policy of  

supporting tribal self-government and self-determination.  That policy favors a rule that  

                                                                                                

will provide the forum whose jurisdiction is being challenged the first opportunity to  

                                                                     

evaluate the factual and legal bases for the challenge." (citations omitted)).  



          28  

                                                                                                   

                    Id. at 856 n.21; Strate v. A-1 Contractors, 520 U.S. 438, 459 n.14 (1997).  



                                                              -22-                                                         6926
  


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

          B.	      Recognition Of The Minto Tribal Court's Judgment On The Custody                    

                    Of S.P. Implicates Interests At The Core Of Tribal Sovereignty And  

                    Self-Determination.  

                   In  John  I ,29  

                                       which  we  recently  relied  on  as  the  "foundational  Alaska  



authority  regarding  Alaska  Native  tribal  jurisdiction  over  the  welfare  of  Indian  

               30 we made clear that when determining the question of tribal jurisdiction over  

children,"                                                               



the welfare of tribal children, our twin  interpretive lodestars are the tribe's  retained  

                                              



inherent sovereign powers and congressional intent to limit or modify those retained  

                                                                                  



                         31  

inherent powers.             We "follow federal law by beginning from the premise that tribal  

                                                                      

sovereignty with respect to issues of tribal self-governance exists unless divested,"32 and  

                                                      



"we will not lightly find that Congress intended to eliminate the sovereign powers of  

                               

Alaska tribes."33  

                           



                   The welfare of tribal children is of vital and fundamental importance to  

                                                                         



tribal self-governance, and ICWA was enacted in "recogni[tion] that a tribe has a strong  



interest in 'preserving and protecting the Indian family as the wellspring of its own  

future.' "34   In its statutory findings in ICWA, Congress made explicit its "responsibility  

                      



for the protection and preservation of Indian tribes" and its intent to protect tribal self- 

                                                                                    



          29	       982 P.2d 738 (Alaska 1999).  



          30       State  v.  Native  Village  of  Tanana,   249   P.3d   734,   750   (Alaska  2011)  



(internal quotation marks omitted).  



          31	      John I , 982 P.2d at 751.  



          32       Id. at 752.  



          33        Tanana, 249 P.3d at 750 (quoting John I , 982 P.2d at 752-53 (internal  

                                                                                           

quotation marks omitted)).  



          34       John I , 982 P.2d at 752 (quoting H.R.   REP .   NO . 95-1386, at 19 (1978),  



reprinted in 1978 U.S.C.C.A.N. 7530, 7541).  



                                                            -23-	                                                      6926
  


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

                                                                 

determination over Indian child custody proceedings:  "[T]here is no resource that is  



                  

more vital to the continued existence and integrity of Indian tribes than their children  



and . . . the United States has a direct interest, as trustee, in protecting Indian children  



                                                                                                             35  

who are members of or are eligible for membership in an Indian tribe."                                             



                     The tribal sovereignty to decide cases involving the best interests of tribal  



                                                                                                          36  

children recognized in John I is inherent, non-territorial sovereignty.    Native Village  



of Tanana recognized that this inherent sovereignty included the right to initiate child  



custody proceedings, including those defined in ICWA for which judgments must be  



                                                            37  

                                                                 In John I and Native Village of Tanana , we  

afforded full faith and credit by states. 



                                                                                                                      

articulated our understanding that " '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  



                                                                  38  

resolution  of  child  custody  disputes.'  "                           "ICWA  creates  limitations  on  states'  

jurisdiction over ICWA-defined child custody proceedings" 39  through the jurisdictional  



                                                                             40  

                                                                                 Section 1911 defines "Indian tribe  

provisions which lie "[a]t the heart of the ICWA." 



jurisdiction   over   Indian   child   custody   proceedings,"   including   exclusive   tribal  



jurisdiction, transfer jurisdiction, and the right of the child's tribe to intervene in state  



           35        25 U.S.C.  1901 (2012).  



           36        John I , 982 P.2d at 748-49.  



           37        Tanana, 249 P.3d at 751.  



           38        Id. at 750 (quoting John I , 982 P.2d at 753-54) (omissions in original).  



           39        Id.  



           40        Mississippi Band of Choctaw Indians v. Holyfield                           , 490 U.S. 30, 36 (1989).     



                                                                -24-                                                         6926
  


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

                              41  

                                           

court  proceedings.                 But  Congress  foresaw  that    1911's  limitations  on  states'  



                                                                        

jurisdiction might prove to be hollow if states, which had "often failed to recognize the  



                                      

essential tribal relations of Indian people and the cultural and social standards prevailing  



                                                         42 

                                                                                               

in Indian communities and families,"                        were free to disregard tribal court judgments in  



                                            

child custody proceedings.  Congress therefore included   1911(d), which requires that  



states give full faith and credit to tribal court child custody judgments to the same extent  



                                                                                                   43 

                                                                                                      as prescribed by the  

as states give full faith and credit to the judgments of sister states, 



                            44                           45 

U.S.  Constitution             and federal law.              This full faith and credit mandate provides a  



statutory guarantee that a tribe's vital sovereign interests in the welfare of its children  

will be respected by state courts.46  



          41         25 U.S.C.  1911(a)-(c).  



          42         25 U.S.C.  1901(5).  



          43         25 U.S.C.  1911(d).  



          44         U.S. CONST . art. IV,  1.  



          45         28 U.S.C.  1738 (2012) ("[J]udicial proceedings . . . shall have the same   



full  faith  and  credit  in  every  court   within   the  United  States  and  its  Territories  and  

Possessions  as  they  have  by  law  or  usage  in  the  courts  of  such  State,  Territory  or  

Possession from which they are taken.").  Congress enacted  1738 to implement the Full  

                                                 

Faith and Credit Clause of the U.S. Constitution.  Magnolia Petroleum Co. v. Hunt , 320  

                                                                                                             

U.S.  430,  437-38  (1943);  see also  Starr v.  George,  175  P.3d  50,  57  (Alaska  2008)  

                                                                 

(indicating that we look to federal law to interpret ICWA's full faith and credit clause).  

                                                                                                  



          46  

                                        

                     See State v. Native Village of Tanana, 249 P.3d 734, 751 (Alaska 2011)  

                                                        

("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 states 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." (citation omitted)).  



                                                               -25-                                                         6926
  


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

                     In  light  of  this  conclusion,  as  well  as  the  well-established  canon  that  



"[c]ourts must resolve ambiguities in statutes affecting the rights of Native Americans  



                                                47 

                                                                                                  

in favor of Native Americans,"                      we turn to ICWA's full faith and credit clause and its  



application to the Minto Tribal Court's judgment terminating Parks's parental rights.  



           C.	       ICWA's Full Faith And Credit Clause Mandates That We Give The  

                     Same   Respect   To   Tribal   Court   Judgments   In   Child   Custody  

                     Proceedings That We Give To Judgments From A Sister State.  



                                                                                                      

                     ICWA  1911(d) requires that state courts give full faith and credit to the  



judgments of tribal courts in Indian child custody proceedings to the same extent that  



                                                                                                   48  

they give full faith and credit to the judgments of other states.     Therefore, we first  



ascertain whether ICWA  1911(d) applies to the judgment of the Minto Tribal Court  



                                              

terminating Parks's parental rights before turning to the requirements of full faith and  



credit.   



           47        John I , 982 P.2d 738, 752 (Alaska 1999);                     see also South Dakota v. Yankton  



Sioux Tribe, 522 U.S. 329. 348 (1998) (recognizing "the standard canon of Indian law"                                

that "federal action which might arguably abridge [powers of tribal self-government] is   

construed  narrowly  in  favor  of  retaining  Indian  rights"  (internal   quotation  marks  

omitted)); Bryan v. Itasca Cnty., 426 U.S. 373, 392 (1976) ("[W]e must be guided by  

that eminently sound and vital canon . . . that statutes passed for the benefit of dependent  

                                                                                                                   

Indian tribes are to be liberally construed, doubtful expressions being resolved in favor  

                                                                                

of the Indians." (ellipsis, citation, and internal quotation marks omitted)).  



           48        25 U.S.C.  1911(d).  



                                                                -26-	                                                         6926
  


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

                     1.	       The Minto Tribal Court's proceedings satisfy ICWA's definition  

                               of child custody proceedings and therefore ICWA's full faith  

                               and credit mandate applies to its judgments.  



                                                                                                                  49  

                                                           

                    It is undisputed that S.P. is an Indian child for ICWA purposes.                                   S.P. was  



eligible for membership in the Native Village of Minto under its tribal law, and she was  



formally  enrolled  in  November  2008  after  Stearman  submitted  a  tribal  enrollment  



                                       50  

                                                   

application on her behalf.                 It is also undisputed that the Minto Tribal Court's custody  



and  termination  proceedings  satisfied  ICWA's  definition  of  Indian  child  custody  



                    51  

                                                                            

proceedings.           Therefore, ICWA  1911(d)'s full faith and credit mandate applies to the  



                                           

Minto Tribal Court's order which terminated the parental rights of Parks and Stearman.  



                                                               

                    At oral argument before us, the State argued that tribal court judgments are  



entitled  to  a  different,  perhaps  diluted,  form  of  full  faith  and  credit  than  sister  state  



                                                                                                                    

judgments because "tribes are differently situated than states."  When asked whether its  



                                                                                                    

position was that "the full faith and credit that we give to tribal court judgments is a  



                                                                                    

different type of full faith and credit tha[n] we give to our sister sovereign states," the  



 State responded affirmatively, asserting that "[i]n a way it is because of the fact that  



          49         See 25 U.S.C.  1903(4), defining "Indian child" as "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."  



          50        ICWA  1903(5) also provides for determining an "Indian child's tribe"  



when an Indian child may be eligible for membership in more than one tribe.  ICWA  

gives tribal jurisdiction and intervention rights to "the Indian tribe with which the Indian  

child has the more significant contacts." 25 U.S.C.  1903(5).  While S.P. may have also  

                                                                   

been  eligible  for  membership  in  Stevens  Village  based  on  Parks's  membership,  the  

                                                

parties do not dispute Minto Village's status as S.P.'s tribe for purposes of ICWA.   



          51         See 25 U.S.C.  1903(1), defining "child custody proceeding" to include  



                                                                                       

foster  care  placement,  termination  of  parental  rights,  preadoptive  placement,  and  

adoptive placement.  



                                                               -27-	                                                       6926
  


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

states have the obligation to adhere to the minimum standards of the U.S. Constitution.  



Tribes have no such obligation to do that."  We reject this argument.  



                      The State's argument for a different type of full faith and credit for tribal  



judgments  in  ICWA-defined  child  custody  proceedings  is  clearly  foreclosed  by  the  



                                                                                                  

statutory language of  1911(d), which requires full faith and credit "to the same extent"  



                                                                                          52  

as that given to any other entity including other states.                                     Neither the State nor Parks  



contests that Congress's grant of full faith and credit to tribal court judgments under  



ICWA  1911(d) is a permissible exercise of Congress's plenary powers over Indian  



              

affairs.  Such a challenge to the statute would have failed in any event given the United  



                                                                 

 States Supreme Court's recognition that "the Constitution grants Congress broad general  



powers to legislate in respect to Indian tribes, powers that [the United States Supreme  



                                                                                                                53  

Court]  ha[s]  consistently  described  as  'plenary  and  exclusive,'  "                                            including  the  



                                                                                                                   

"authori[ty] . . . to enact legislation that both restricts and . . . relaxes . . . restrictions on  



                                            54  

tribal sovereign authority."                     



                      The State's argument also fails to afford tribal courts the respect to which  



they are entitled as the judicial institutions of sovereign entities.  We have previously  



           52         25 U.S.C.  1911(d) (emphasis added);                          see also State v. Native Village of  



 Tanana, 249 P.3d 734, 751 (Alaska 2011) ("Necessarily, federally recognized Alaska   

Native tribes are entitled to all of the rights and privileges of Indian tribes under ICWA,       

including . . .  1911(d) full faith and credit with respect to ICWA-defined child custody     

orders to the same extent as other states' and foreign orders." (citation omitted)).  



           53         United States v. Lara, 541 U.S. 193, 200 (2004) (citation omitted).  



           54        Id . at 202.  



                                                                  -28-                                                             6926
  


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

                                                              55  

emphasized  respect  for  tribal  courts,                         and  this  respect  must  inform  our  analysis,  



especially when full faith and credit is mandated by Congress.   



                                        

                      2.	       We require exhaustion of appellate remedies before allowing  

                                collateral  attack  on  sister  state  judgments.    Tribal  court  

                                                         

                                judgments  in  ICWA-defined  child  custody  proceedings  are  

                                entitled to the same respect.  



                      We will deny full faith and credit to the final judgment of a sister state only  



                                         

in limited circumstances, including situations where (1) the issuing court lacked personal  



                                                                                              

or subject matter jurisdiction when it entered its judgment; or (2) the issuing court failed  



                                                                                                            56  

to  render  its  judgment  in  accordance  with  minimum  due  process.                                           A  sister  state's  



                                               

judgment is presumed to be entitled to full faith and credit, and the burden of proof is  



                                                                                                  57 

                                                                                                      The same presumption  

properly on the party challenging the validity of the judgment. 



                              

and burden apply when a party challenges a tribal court judgment that is entitled to full  



                 

faith and credit.  "[I]t is presumed the decisions of tribal courts are sound unless the  



                                                                                                                                    58  

challenging party can show that the foreign judgment was constitutionally infirm."                                                       



           55        See, e.g., John I , 982 P.2d 738, 762-63 (Alaska 1999) (holding that "as a       



general rule, our courts should respect tribal court decisions under the comity doctrine,"     

which we defined in terms of "mutual respect").  



           56	       See Starr v. George, 175 P.3d 50, 55 (Alaska 2008).  



           57  

                             

                     See John II, 30 P.3d 68, 72 (Alaska 2001) (noting that a "presumption  

                                                                                                     

against judicial error is common between cooperating courts of concurrent jurisdiction"  

and that "courts have placed the burden of proof upon the party challenging another  

state's judgment").  



           58  

                                                                                                                    

                     Starr, 175 P.3d at 56 (internal quotation marks and citation omitted).  This  

                                                                                                    

presumption accords with our precedent on granting comity to tribal court judgments in  

                                                                                                  

the non-ICWA child custody context.  John II , 30 P.3d at 72 ("[I]t should be presumed  

that tribal courts' decisions are sound and deserving of comity unless the challenging  

party can show otherwise.").  



                                                                  -29-	                                                           6926
  


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

                     As  a  measure  of  respect  for  our  sister  states  and  their  courts,  we  have  



                              

refused to allow a party to collaterally attack a sister state's judgment when the party  



                                                                                                                                  59  

                                                                      

failed to appeal in that state's courts.  In Wall v. Stinson, we "decline[d] to reexamine" 



                                                                                                       

challenges  to  a  sister  state's  judgment,  including  challenges  to  the  issuing  court's  

jurisdiction, when the party "failed to prosecute an appeal." 60  We concluded that "[e]ven  



                                                                                                                   

if the judgment is based on legal error, it is entitled to full faith and credit.  The remedy  



                                                                      61  

for legal error is appeal, not collateral attack."                         



                     We have recognized that tribal court judgments in ICWA-defined child  



                                                             

custody proceedings are entitled to full faith and credit to the same extent as a judgment  



                        62  

of a sister state.           Therefore, when a party challenges the validity of a tribal judgment  



in an ICWA-defined child custody proceeding, we must consider whether tribal appellate  



                                                       

remedies were available, and if so, whether the party challenging the judgment "failed  



                                     63  

to prosecute an appeal."                  



                             

          D.	        The Exhaustion Of Tribal Remedies Doctrine Is Persuasive In This  

                     Context And We Adopt The Federal Doctrine.  



                     Given our precedent that the failure to exhaust appellate remedies precludes  

collateral attack,64 and the necessity of interpreting ICWA in light of relevant federal  



                    

Indian  law,  we  proceed  to  examine  the  federal  exhaustion  of  tribal  court  remedies  



          59         983 P.2d 736, 743 (Alaska 1999).
  



          60        Id. at 741.
  



           61       Id.
   



          62  

                                                                                                                        

                     Starr, 175 P.3d at 55 ("ICWA requires the state to give the same credit to  

tribal court judgments it gives to the judgments of the courts of sister states.").  



          63         Wall, 983 P.2d at 741.
  



          64        Id.
  



                                                               -30-	                                                        6926
  


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

doctrine.  The policies underlying that doctrine are persuasive in this context, and we  



adopt the federal doctrine.  



                    In  Starr v. George, we directly addressed ICWA's full faith and credit  



                                                                                                    

mandate for tribal court judgments, and we concluded that "[f]ull faith and credit . . .  



                                     

requires that the issuing court afford the parties due process and render its judgment in  



                                                                                        65  

                                                                                            We relied on federal law  

accordance with federal and state constitutional standards."                                                     



for "guidance in determining whether the tribal court resolutions meet the requirements  

                                                               



                                                                                 66  

entitling  them  to  full  faith  and  credit  under  ICWA."                           Similarly,  in  answering  the  

                                  



question whether Parks was required to exhaust available tribal appellate remedies, we  

                                                                                               



look  to  federal  law  for  guidance  and  conclude  that  the  federal  exhaustion  of  tribal  



remedies doctrine should apply in this case.   



                    This case involves an issue of federal Indian law, namely the Minto Tribal  

                                                                            



Court's power and jurisdiction to determine custody issues affecting S.P., including  



                                                                                                       

termination of the parental rights of her non-tribal member father and her tribal member  



mother.  The Ninth Circuit faced similar fact patterns involving the custody of a tribal  



                                                                                                                              67  

              

member child and the parental rights of a non-tribal member parent in Boozer v. Wilder 



                                                                          68 

and Atwood v. Fort Peck Tribal Court Assiniboine ,   dismissing both cases for failure to  

       



exhaust  available  tribal  court  remedies.    The  Boozer  court  looked  to  United  States  



Supreme Court precedent and concluded that "[b]ecause federal law defines the outer  



                                                                                    

boundaries of an Indian tribe's power over non-Indians, the question whether an Indian  



                                                                         

tribe retains the power to compel a non-Indian . . . to submit to the civil jurisdiction of  



          65        175 P.3d at 55.  



          66        Id. at 57.  



          67        381 F.3d 931 (9th Cir. 2004).  



          68        513 F.3d 943 (9th Cir. 2008).  



                                                             -31-                                                        6926
  


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

                                                                                                             69  

             

                                                                                                      

a tribal court is one that must be answered by reference to federal law."                                        The Boozer  



                                     

court further concluded that "[a] federal court must give the tribal court a full opportunity  



                                 

to determine its own jurisdiction, which includes exhausting opportunities for appellate  



review  in  tribal  courts,"  and  proceeded  to  apply  the  exhaustion  of  tribal  remedies  

doctrine.70  



                                                                                                                       

                    The  United  States  Supreme  Court  announced  the  exhaustion  of  tribal  



                                                

remedies doctrine in National Farmers Union Insurance Companies v. Crow Tribe of  

             71 where the Court concluded that the congressional "policy of supporting tribal  

Indians ,  



self-government and self-determination . . . favors a rule that will provide the forum  



                                           

whose jurisdiction is being challenged the first opportunity to evaluate the factual and  



                                             72  

                                                                                                      

legal bases for the challenge."                   The United States Supreme Court has also recognized  



that  "proper  respect  for  tribal  legal  institutions  requires  that  they  be  given  a  'full  



                                                                                                                   73  

                                                                                                                       "Proper  

opportunity' to consider the issues before them and to rectify any errors." 



                                                                                                               

respect" for tribal courts requires affording them a "full opportunity" to conduct tribal  



                                                                                       

appellate review: "The federal policy of promoting tribal self-government encompasses  



          69        381 F.3d at  934 (omission in original) (quoting Nat'l F                           armers Union Ins.  



Cos. v. Crow Tribe of Indians,  471 U.S.  845,  851-52 (1985)) (internal quotation marks  

omitted); see also Plains  Commerce  Bank  v.  Long Family Land & Cattle Co. , 554 U.S.  

316,   324  (2008)   ("We   begin  by  noting  that   whether   a   tribal   court   has  adjudicative  

authority over nonmembers is a federal question.").  



          70  

                                                                                                         

                    381 F.3d at 935 (citing Iowa Mut. Ins. Co. v. LaPlante , 480 U.S. 9, 16-17  

(1987)).  



          71        471 U.S. 845.  



          72        Id. at 856.  



          73  

                                             

                    Iowa Mut. Ins. , 480 U.S. at 16 (quoting Nat'l Farmers Union , 471 U.S. at  

857).  



                                                              -32-                                                         6926
  


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

the  development  of  the  entire  tribal  court  system,  including  appellate  courts.    At  a  



                                                         

minimum, exhaustion of tribal remedies means that tribal appellate courts must have the  

opportunity to review the determinations of the lower tribal courts."74  



                   The United States Supreme Court has explained that the exhaustion of tribal  

remedies doctrine is " 'prudential,' [rather than] jurisdictional,"75 so federal courts are  



                                                      

instructed to examine relevant federal policy and determine whether "[r]espect for tribal  



                                                                                                      

self-government ma[kes] it appropriate 'to give the tribal court a "full opportunity to  

                                               76  When Congress passed ICWA, it included statutory  

determine its own jurisdiction." ' "                                                           



findings making clear the paramount importance of the welfare of tribal children to the  

                                                                                                      



continued viability of tribal self-government and self-determination:  "[T]he Congress  

                                                                 



finds . . . there is no resource that is more vital to the continued existence and integrity  



                                                         77  

of Indian tribes than their children . . . ."                As discussed above, there can be no doubt  

then  that  the  "policy  of  supporting  tribal  self-government  and  self-determination"78  



applies to ICWA-defined tribal child custody proceedings and supports a conclusion that  

                                             



tribal remedies must be exhausted before state jurisdiction may be exercised.   



                   In addition to the doctrine's applicability in federal courts, at least one state  



supreme court has held that the doctrine is binding on its state's courts in situations of  



         74        Id. at 16-17.  



         75        Strate v. A-1 Contractors, 520 U.S. 438, 451(1997) (quoting Iowa Mut.  



Ins. , 480 U.S. at 20 n.14).  



         76        Id. (quoting Iowa Mut. Ins. , 480 U.S. at 16).  



         77        25 U.S.C.  1901(3) (2012).  



         78        Nat'l Farmers Union , 471 U.S. at 856.  



                                                          -33-                                                    6926
  


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

concurrent tribal and state jurisdiction.79  As the Connecticut Supreme Court persuasively  



reasoned,  



                    [t]he Supreme Court established the doctrine mainly in order  

                    to avoid disruption of that "federal policy supporting tribal  

                    self-government  .  .  .  [through]  direct  competition  [by  the  

                                                  

                    federal courts] with the tribal courts . . . ."  In our view, direct  

                                                               

                    competition from state courts is equally likely to disrupt that  

                    federal policy.  Because we owe no less deference to federal,  

                    statutory based policy than do the federal courts, we should  

                   be no more willing than they to risk disruption of this federal  

                                                 

                   policy  by  exercising  jurisdiction  over  cases  to  which  the  

                                    

                    doctrine would apply.  Indeed, the well recognized " 'plenary  

                    and exclusive [federal] power over Indian affairs' " which  

                                                                                    

                    generally precludes independent exercise of state authority  

                    vis-a-vis tribal affairs, deepens our duty of deference to this  

                                                                                

                   particular policy.  We conclude, therefore, that the doctrine  

                                                                         [80] 

                    is binding on the courts of this state.  



                    We  have  also  considered  an  exhaustion  requirement  in  the  context  of  



                                                                                       

extending comity to tribal court child custody decisions not covered by ICWA.  In John  



                                                                                          

II , we gave notice that "a litigant's failure to exhaust tribal remedies is a significant  



                                                                                         81  

                                                                                                   

factor to be considered when that litigant challenges comity."                              We pointed out that the  



                                                                  

tribal court "had no chance to pursue internal remedies" to rectify the alleged due process  



                                                                                        82  

                                                                                             We declined to adopt a  

violation, which in that case was the loss of the court record. 



strict exhaustion requirement in the comity analysis of a non-ICWA child custody case,  



          79       Drumm v. Brown , 716 A.2d 50, 63-64 (Conn. 1998).  



          80       Id. (alterations in original) (first omission in original) (citations omitted).  



          81        30 P.3d 68, 74 n.31 (Alaska 2001).  



          82       Id. at 74.  



                                                            -34-                                                       6926
  


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

                                          

but we warned that the failure to exhaust tribal appellate procedures could "seriously  



                                                                                                                                                83  

undermine" a party's claim to have been denied minimum due process.                                                                                   



                                                                                                                                                 

                           Here we are not examining the analysis of comity but rather that of full faith  



and credit required by ICWA.  In Starr v. George, we noted that full faith and credit  



                                                                                                                                                     84  

                                                                                                                                                          Under the  

requires even greater deference to tribal court judgments than does comity. 



                                                                                         

heightened standard of full faith and credit, a litigant's failure to appeal a tribal court's  



child custody decision must even more "seriously undermine any claims that the tribal  



                                                               85 

                                                                   thus supporting adoption of the federal exhaustion of  

court denied him due process," 



tribal remedies doctrine.   



                                                                                                                                 

                           The policies underlying the exhaustion of remedies doctrine are  persuasive  



                              

in the context of ICWA-defined child custody proceedings and are consistent with our  



                                                                                       

precedent stating that the failure to exhaust appellate remedies precludes review of sister  



state judgments.  We therefore adopt the federal exhaustion of remedies doctrine in this  



context and turn next to the question whether Parks satisfied any of the exceptions to that  



doctrine.  



              83           Id. at 74 n.31.  



              84            175 P.3d 50, 53 (Alaska 2008) (noting that comity is "a principle under   



which it is easier to attack the parallel judgments of foreign (in this case, tribal) courts"                                                      

than it is under the principle of full faith and credit).  We also cited Robert Laurence,                                                                              The  

 Convergence of Cross-Boundary Enforcement Theories in American Indian Law: An   

Attempt to Reconcile Full Faith and Credit, Comity and Asymmetry                                                                        , 18 QUINNIPIAC L.  

R                                                                                                     

    EV . 115, 125-26 (1998), for the propositions that  "once full faith and credit principles  

                                                                              

are found to apply, the receiving court is very restricted in the kinds of collateral attacks  

                                                               

that it is allowed to entertain," and "[c]omity is less restrictive a doctrine than full faith  

and credit."  Starr, 175 P.3d at 53 n.10.  



              85           John II , 30 P.3d at 74 n.31.  



                                                                                   -35-                                                                             6926
  


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

            E.	        Parks Has Not Satisfied Any Of The Exceptions To The Exhaustion Of  

                                                                                                                           

                       Tribal Remedies Doctrine.  



                       Federal  law  recognizes  limited  exceptions  to  the  exhaustion  of  tribal  



remedies doctrine.  Exhaustion is not required "where an assertion of tribal jurisdiction  

                                                                                                                       



is motivated by a desire to harass or is conducted in bad faith, or where the action is  

                                                                      



patently violative of express jurisdictional prohibitions, or where exhaustion would be  

                                                                          



futile  because  of  the  lack  of  an  adequate  opportunity  to  challenge  the  court's  

                       86    Nor  is  exhaustion  required  if  it  is  clear  that  the  tribal  court  lacks  

jurisdiction."                                                                                                                  



jurisdiction over the dispute so that "the otherwise applicable exhaustion requirement  



                                                                                                             87  

must give way, for it would serve no purpose other than delay."                                                    



                       The State and Parks do not argue that the assertion of the Minto Tribal  

                                                                                           



Court's jurisdiction "[was] motivated by a desire to harass or [was] conducted in bad  

                                                                        

faith" or that "the action [was] patently violative of express jurisdictional prohibitions."88  

                                          



Instead, the State asserts a futility argument, contending that "appellate review of Parks's  



jurisdictional objections would not have been meaningful."  The State also argues that  

                                                                                                         



if the exhaustion doctrine applies to Parks, then his case falls under the exception where  

                                                                          



it is "plain" that the tribal court lacked jurisdiction so that "the otherwise applicable  

                                                                                                                 

exhaustion requirement must give way, for it would serve no purpose other than delay."89  

                                                                                                                              



Parks agrees with these arguments.  We conclude that Parks has not satisfied any of the  

                                                                                                                     



            86	        Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians                                       , 471 U.S. 845, 856   



n.21 (1985) (internal quotation marks and citation omitted).  



            87         Strate v. A-1 Contractors, 520 U.S. 438, 459 n.14 (1997) (internal citation  

                                                                                             

omitted); see also Nevada v. Hicks, 533 U.S. 353, 369 (2001); Boozer v. Wilder , 381  

F.3d 931, 935 (9th Cir. 2004).  



            88         Nat'l Farmers Union , 471 U.S. at 856 n.21.  



            89         Strate, 520 U.S. at 459 n.14 (citation omitted).  



                                                                       -36-	                                                               6926
  


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

exceptions to the exhaustion requirement and that his failure to exhaust available tribal  



appellate remedies is thus fatal to his state court action.   



                     1.	       Parks chose not to exhaust available tribal appellate remedies.  



                     Shortly after the termination of his parental rights, Parks was provided with  

                                                                 



detailed information on his right to seek review by the Minto Court of Appeals.  Parks  

                                            



received instructions on how to file an appeal, including the instruction to file a "brief  

                                                                                          



statement of why the Appellant believes that the Order deserves a hearing by the Minto  

                                                                                      



                             90  

Court of Appeals."               (Emphasis omitted.)  There were no page limitations or substantive  



restrictions placed on the appellant's statement of appeal, and there were no restrictions  

                                                                                          



on the participation of an attorney in preparing the statement of appeal.  Yet Parks failed  

                                                                                              



to file an appeal with the Minto Court of Appeals.  



                     2.	       Parks does not satisfy the futility exception to the exhaustion  

                               doctrine.  



                     In National Farmers Union , the United States Supreme Court articulated  

                                                                                              



an exception to the exhaustion requirement "where exhaustion would be futile because  



                                                                                                                                 91  

of the lack of an adequate opportunity to challenge the [tribal] court's jurisdiction."                                               



                     The  superior  court,  in  its  first  order  denying  the  motion  to  dismiss,  

                                           



expressed concern that the appellate process of the Minto Court of Appeals might not  

                               



present an adequate opportunity to challenge the tribal court's jurisdiction, focusing on  



that court's use of the term "brief statement" in its appellate procedures:  



                     The Minto appeal procedures permit only a "brief statement"  

                                                                   

                     of the reasons for the appeal . . . .  Given the limited statement  

                                                                     

                     permitted under the appeal procedures, the rule that lawyers  

                                                                



          90         The Minto Judicial Code was revised and the 2010 version stated that "[t]he       



Notice of Appeal shall contain a statement of why the Appellant believes that the case  

should come before the Minto Court of Appeals."  



          91	        471 U.S. at 856 n.21.  



                                                                -37-	                                                             6926  


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

                                                                                    

                     may not speak before the Minto tribal courts, and the reason  

                                                                                        

                     given at oral argument for the rule - that Minto Tribal Court  

                     judges  are  not  law-trained  and  therefore  do  not  permit  

                     lawyers to speak - requiring exhaustion of tribal remedies  

                                                                                           

                     would not cure the due process denial that occurred here -  

                                                       

                     the refusal to permit a jurisdictional objection to be raised and  

                                                                          

                     heard in a meaningful fashion. . . . [T]herefore, exhaustion of  

                                               

                     tribal remedies is not required under the circumstances of this  

                      case.  



                     But the superior court's concern was misplaced for two reasons.  First, there  



                                                                                                      

were no specific limitations on the length of submissions to the Minto Court of Appeals  



     

or restrictions on the ability of Parks's attorney to prepare submissions and thereby  



present  his  jurisdictional  objections.    We  will  not  presume  that  the  Minto  Court  of  



                                                                                                         

Appeals' procedures precluded meaningful written briefing based on its use of the phrase  



                            92  

"brief statement."               Second, the futility exception to the federal exhaustion doctrine does  



                                                                                  

not entail full review of tribal court procedures, as this would vitiate the deference that  



the doctrine dictates.  Instead, federal courts generally apply this exception only when  



the complete lack of a functioning tribal court renders tribal remedies unavailable and  



                         93  

therefore futile.            The record is clear that a tribal appellate remedy was available and that  



           92        For comparison, Alaska Rule of Appellate Procedure 204(e) directs the   



appellant to "serve and file a  concise statement of the points on which appellant intends   

to rely in the appeal."             (Emphasis added.)  This rule does not violate the requirements of  

minimum due process or make appeal meaningless.  



           93  

                                                                                                     

                     See, e.g., Comstock Oil & Gas Inc. v. Alabama & Coushatta Indian Tribes  

                                                                                         

of Texas, 261 F.3d 567, 572 (5th Cir. 2001) ("Because no tribal court properly existed,  

                                                                                                     

exhaustion was imprudent in the present dispute."); Johnson v. Gila River Indian Cmty. ,  

                                                                                        

174 F.3d 1032, 1036 (9th Cir. 1999) ("Delay alone is not ordinarily sufficient to show  

                                                                                                                      

that pursuing tribal remedies is futile. However, if a functioning appellate court does not  

                                                                                                                             

exist, exhaustion is per se futile."); Krempel v. Prairie Island Indian Cmty. , 125 F.3d  

                                                                                                           

621, 622 (8th Cir. 1997) ("[I]f there is no functioning tribal court, exhaustion would be  

                                                                                                                     (continued...)  



                                                                  -38-                                                             6926
  


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

Parks was aware of this fact before he brought his collateral attack on the Minto Tribal  

                 



Court's judgment in the superior court.  



                    The State couches its futility argument in terms of whether tribal appellate  



                                                                                                             

review  would  have  been  "meaningful,"  arguing  that  "if  required  to  exhaust  tribal  



                                                                                                 

remedies, Parks would still be hindered by the restriction on oral advocacy by attorneys"  



                                                          

even though his attorney would have been permitted to submit written briefing on his  



                                                                

jurisdictional objections.  In considering the State's futility argument, we rely on our  

                                              94 but we also recognize that full faith and credit requires  

discussion of comity in John I ,  

                                                                                                    95  In our discussion  

even greater deference to tribal court judgments than does comity.  

                                                                                                         



of the due process requirements for granting comity, we emphasized that proceedings in  

                                                 



tribal courts must not be evaluated by unreflective comparison with state and federal  

                                                            

judicial procedures. 96   The critical question is "whether the parties received notice of the  

                                   



proceedings and whether they were granted a full and fair opportunity to be heard before  

                                                                           



                                                                                                                97  

an impartial tribunal that conducted the proceedings in a regular fashion."                                          We have  



also cautioned state court judges against importing their own views on proper procedure:  



"[T]his due process analysis in no way requires tribes to use procedures identical to ours  



in their courts. The comity analysis is not an invitation for our courts to deny recognition  

                               



          93(...continued)  



futile and therefore would not be required."); see also C 

                                                                                  OHEN 'S HANDBOOK OF FEDERAL  

INDIAN   LAW   7.04[3], at 632 (Nell Jessup Newton ed., 2012) [hereinafter C                                          OHEN 'S  

                                                                        

HANDBOOK ] ("The 'futility' exception applies generally only when the tribe does not  

have a functioning court system.").  



          94        982 P.2d 738, 763-64 (Alaska 1999).  



          95        Starr v. George, 175 P.3d 50, 53 (Alaska 2008).  



          96        John I , 982 P.2d at 763.  



          97        Id.  



                                                              -39-                                                         6926
  


----------------------- Page 40-----------------------

                                                                                                                     98  

to tribal judgments based on paternalistic notions of proper procedure."                                                 We have  



                                                                                          

clarified that "in deciding whether a party was denied due process, superior courts should  



                                                                                                                          

strive to respect the cultural differences that influence tribal jurisprudence, as well as to  

recognize the practical limits experienced by smaller court systems."99  This accords with  



our generally applicable precedent that "[d]ue process is flexible, and the concept should  

                                                                                                            



be  applied  in  a  manner  which  is  appropriate  in  the  terms  of  the  nature  of  the  

                                                                                                                  

proceeding."100  

                           



                     We have also expressly warned that when evaluating tribal court judgments,  



state court judges "should not deny recognition to tribal judgments simply because they  

                                                                                        



disagree with the outcome reached by the tribal judge or because they conclude that they  



                                                                         101  

                                                                                 In  John  I ,  we  admonished  that  

could  better  resolve  the  dispute   at  issue." 



"suggesting-as the superior court did in this case-that state jurisdiction was proper  



because 'significant expertise will be required to resolve this difficult dispute,' has no  



                                             102  

place in a comity analysis."                       Nor does it have any place in a full faith and credit  



analysis or in establishing the futility exception to the exhaustion requirement.  The  

                                                                                         



United  States  Supreme  Court  has  similarly  "rejected  .  .  .  attacks  on  tribal  court  

             



jurisdiction" based on allegations of "local bias and incompetence" and has made clear  

                                                                                                                  



that  "[t]he alleged incompetence of tribal courts is not among the exceptions  to  the  

                                                                                                             



           98        Id.  



           99        Id.  



           100       Flores v. Flores , 598 P.2d 893, 895 (Alaska 1979) (citation and internal                        



quotation marks omitted).  



           101       John I , 982 P.2d at 763 (citing Hilton  v.  Guyot , 159 U.S. 113, 202-03  



(1895)).  



           102       Id. at 763-64.  



                                                                 -40-                                                           6926
  


----------------------- Page 41-----------------------

exhaustion requirement established in National Farmers Union ."103  We therefore reject  

                                                                                                            



any hint of inadequacy of review that might be inferred from the State's characterization  

                                                                          



of the Minto Tribal Court as a " 'relational' tribal court that applies unwritten, cultural  

                                                                                         



law" and "is unfamiliar with core Western jurisdictional concepts."  As the First Circuit  

                                                      



forcefully stated:  



                     The unsupported averment that non-Indians cannot receive a  

                     fair  hearing  in  a  tribal  court  flies  in  the  teeth  of  both  

                                                

                     congressional  policy  and  the  Supreme  Court  precedents  

                     establishing the tribal exhaustion doctrine.  The requirements  

                                                                          

                     for th[e futility] exception are rigorous; . . . a party cannot  

                     skirt  the  tribal  exhaustion  doctrine  simply  by  invoking  

                     unfounded stereotypes.[104]  



                     The State focuses on the necessity of attorney oral argument for Parks to  

                                                        



meaningfully present his jurisdictional objections to the Minto Tribal Court or the Minto  

                                                                                                   



Court  of  Appeals.    But  if  the  "jurisdictional  question  here  is  a  complex  question  



                                                                                                                      

governed by federal case law," as the State asserts, written argument could be preferable  



                                                    

to oral presentation of complex federal precedent.  And the State presents no authority  



for its conclusion that oral argument is necessary to make an appeal meaningful; instead  



the State conflates the familiar with the necessary, measuring the role of Parks's counsel  



                                   

in the tribal appellate court against what would be typical in an federal or state appellate  



court.  Furthermore, many state appellate courts do not grant oral argument as a matter  



           103       Iowa Mut. Ins. Co. v. LaPlante , 480 U.S. 9, 18-19 (1987).  



           104       Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth.                                            , 207  



F.3d 21, 34 (1st Cir. 2000).  



                                                                 -41-                                                                6926  


----------------------- Page 42-----------------------

of right,105  and we would not allow the State to undermine the decisions of these courts  

                     



on that basis.  



                         The  State  and  Parks  fail  to  establish  that  appeal  to  the  Minto  Court  of  



Appeals would not have provided "an adequate opportunity to challenge the [tribal]  



                                       106  

court's jurisdiction."                       Because a tribal appellate remedy was available to Parks, we  



conclude that he fails to satisfy the futility exception to the exhaustion doctrine.   



                         3.	         Parks fails to satisfy the exception under which a party need not  

                                     exhaust tribal court remedies when it is plain that the tribal  

                                     court lacked jurisdiction.  



                         In a footnote in Strate v. A-1 Contractors, the United States Supreme Court  



recognized a fourth exception to the exhaustion of tribal remedies doctrine when "it is  

                                                              

                                                                                                     107   In such cases, "the otherwise  

plain that . . . tribal courts lack adjudicatory authority."  

                                                                                                                           



applicable exhaustion requirement must give way, for it would serve no purpose other  

                                                                                                                                        



                       108  

than delay."                 The Ninth Circuit "ha[s] equated that inquiry with whether jurisdiction  

                                                                            



             105         See, e.g., PA .  R.  APP .  P. 3813 ("There is no right to oral argument before                          



an appellate court.   The Supreme Court will consider any request for oral argument set  

forth in a petition for review and, if granted, will notify interested parties of the time,   

place and manner of oral argument.");                                   Brown v. Glover , 16 P.3d 540, 544 (Utah 2000)  

("Clearly, while an appeal as of right exists, there is no specific right to oral argument                                        

under Utah law.  In fact, rule 29 specifically states reasons for which an appellate court       

need not grant oral argument.");                               see also FED .   R.   APP .   P. 34(a)(2) (providing for the  

disposition of federal appeals without oral argument).  



             106	        Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians                                              , 471 U.S. 845,                  856  



n.21 (1985).  



             107	        520 U.S. 438, 459 n.14 (1997).  



             108	        Id. (citation omitted).  



                                                                             -42-	                                                                     6926
  


----------------------- Page 43-----------------------

                                                109  

is 'colorable' or 'plausible.' "                      Under this exception, excusal of exhaustion of tribal  



remedies is justified only when tribal adjudicatory authority is so plainly foreclosed by  



                                                                                                                      110  

law that the tribal court has no colorable or plausible claim to jurisdiction.                                             A leading  



                                                                                                                         

treatise  similarly  concludes  that  "[w]here  the  Supreme  Court  has  not  yet  clearly  



                             

foreclosed tribal jurisdiction, . . . the policies behind the exhaustion requirement itself  



                                                                                                                                 111  

                                                                                                                                      As  

dictate that tribal courts be permitted to first review the jurisdictional question." 



                                                                                                              

we  explain  below,  tribal  courts  should  be  permitted  to  review  fully  the  type  of  



jurisdictional objections raised by Parks because tribal jurisdiction in this case is, at the  



very  least,  colorable  and  plausible.    This  approach  is  consistent  with  Congress's  



structuring ICWA to validate the importance of tribal court jurisdiction in this context.  



                                                                                                   

                                a.	        The Minto Tribal Court had a  colorable and plausible  

                                           claim to jurisdiction over this case.  



                                                                                                                     

                      In applying Strate 's jurisdictional exception, we conclude that the Minto  



Tribal Court had, at the very least, a colorable and plausible claim to jurisdiction to  



                                                                      

terminate Parks's and Stearman's parental rights to S.P.  The Ninth Circuit has applied  



the colorable or plausible tribal jurisdiction review standard to cases with facts quite  



similar to those in this case and has concluded that tribal jurisdiction over a non-tribal  



           109       Atwood v. Fort Peck Tribal Court Assiniboine , 513 F.3d 943, 948 (9th Cir.  



2008).  



           110       Id. ; see also Elliott v. White Mountain Apache Tribal Court                                  , 566 F.3d 842,  



 848 (9th Cir. 2009) ("If 'jurisdiction is "colorable" or "plausible," ' then the exception     

does not apply and exhaustion of tribal court remedies is required." (citation omitted));     

Marceau v. Blackfeet Hous. Auth. , 540 F.3d 916, 920 (9th Cir. 2008) ("Principles of  

comity require federal courts to dismiss or to abstain from deciding claims over which  

                                      

tribal court jurisdiction is 'colorable,' provided that there is no evidence of bad faith or  

                                                                                             

harassment." (citation omitted)).  



           111	       COHEN 'S HANDBOOK , supra note 93,  7.04[3], at 633.  



                                                                  -43-	                                                            6926
  


----------------------- Page 44-----------------------

                                                                                                                                  112  

                                        

member was not plainly lacking so that exhaustion of tribal remedies was required. 



For example in Atwood v. Fort Peck Tribal Court Assiniboine , the Ninth Circuit held that  



                                         

the non-Indian father was required to exhaust tribal remedies in a child custody dispute  



                                                                                           113 

                                                                                                The court concluded that  

before he could challenge tribal jurisdiction in federal court. 



"it is not 'plain' that tribal court jurisdiction is lacking . . . [,] equat[ing] that inquiry with  



                                                                               

whether jurisdiction is 'colorable' or 'plausible.' . . . [T]he suit primarily concerns [the  



                        

child], who is a member of the tribe.  Although the rights of non-member Plaintiff are  



                                                                                                                                  114  

                                   

affected, it is not clear that that fact alone would strip the Tribal Court of jurisdiction." 



                     In  John  I ,  our  foundational  decision  on  tribal  jurisdiction  over  child  

custody,115 we considered the adjudication of a custody dispute between two parents  



                                                             116  

from  different  Alaska  Native  Villages.                           In  that  case,  the  mother  consented  to  the  



                                                                                                         

jurisdiction of the father's tribal court, and we were called upon to decide whether the  



                                                                                                                                  117  

                                                              

tribal court had concurrent jurisdiction with the state court over the custody dispute. 



                                                  

Although  the  custody  dispute  fell  outside  of  ICWA,  "we  conclude[d]  that  ICWA  



           112       See, e.g., Atwood, 513 F.3d at 948;                 Boozer v. Wilder , 381 F.3d 931, 935-37  



(9th Cir. 2004).  



           113       513 F.3d at 948.  



           114  

                           

                     Id. (emphasis in original); see also Boozer, 381 F.3d at 935-37 (upholding  

                                                           

the dismissal of a non-Indian father's suit challenging tribal jurisdiction over a custody  

                                                                                             

dispute concerning his daughter, who was a tribal member, for failure to exhaust tribal  

remedies).  



           115  

                                  

                     State v. Native Village of Tanana, 249 P.3d 734, 750 (Alaska 2011) ("John  

                                                                               

v. Baker is foundational Alaska authority regarding Alaska Native tribal jurisdiction over  

the welfare of Indian children . . . .").  



           116       John  I ,  982  P.2d  738,  743  (Alaska  1999)  ("Ms.  John  is  a  member  of  



Mentasta Village and Mr. Baker is a member of Northway Village.").  



           117       Id.  



                                                                -44-                                                         6926
  


----------------------- Page 45-----------------------

provides the most appropriate test for deciding when a tribal court has subject matter   



jurisdiction over a particular custody dispute.  Under ICWA, the relevant factor is the  



                      118  

child's tribe."             We explained:  



                                                                                   

                     Although Ms. John is not a member of Northway Village, she  

                      argues  that  the  children  themselves  are  eligible  for  tribal  

                     membership.  This is a critical fact that must be determined  

                                             

                     by  the  superior  court  on  remand  .  .  .  .    A  tribe's  inherent  

                      sovereignty to adjudicate internal domestic custody matters  

                      depends on the membership or eligibility for membership of  

                                     

                     the child. Such a focus on the tribal affiliation of the children  

                                       

                      is  consistent  with  federal  statutes  such  as  ICWA,  which  

                                                                  

                      focuses on the child's tribal membership as a determining  

                      factor in allotting jurisdiction.  Because  the tribe only has  

                      subject matter jurisdiction over the internal disputes of tribal  

                                                                         

                     members, it has the authority to determine custody only of  

                      children who are members or eligible for membership.[119]  



                                

We concluded that "an action for determination of custody of the children of a member  



                                                                                                                          

of Northway Village . . . falls squarely within Northway's sovereign power to regulate  

the internal affairs of its members."120  



                                                                              

                      In John I , there was some question whether the children were in fact tribal  



                                                                                               121  

                                                                                                    The case was remanded  

members or eligible for tribal membership under tribal law. 



                                                                                                                                      122  

                                                        

to the superior court to determine the children's membership status under tribal law 



                                      

in accordance with the United States Supreme Court's precedent in Santa Clara Pueblo  



           118       Id. at 764 (emphasis in original).
  



           119       Id. at 759 (citation omitted).
  



           120       Id.
  



           121       Id. at 764.
  



           122       Id.
  



                                                                  -45-                                                            6926
  


----------------------- Page 46-----------------------

v. Martinez that "[a] tribe's right to define its own membership for tribal purposes has  



long   been   recognized   as   central   to   its   existence   as   an   independent   political  



                   123  

                              

community."             On remand, the superior court determined that the children were eligible  



for membership, and we subsequently upheld the tribal court's jurisdiction on the basis  

of the children's eligibility for membership.124  



                                                       

                    Our conclusion that the Minto Tribal Court's claim of jurisdiction over the  



custody of S.P. is plausible is consistent with case authority and the views of scholars  



and commentators on tribal jurisdiction in ICWA-defined child custody proceedings.  



"The  Act  accommodates  Indian  children  with  mixed  parentage  from  intertribal  



marriages,"  and  tribal  jurisdiction  and  intervention  rights  depend  solely  on  the  



                                             125                                                       126 

                                                                                                            

membership status of the child.                   In Kaltag Tribal Council v. Jackson ,                    where "[t]he  



          123      Id. at 764 n.187 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72  



n.32 (1978)) (internal quotation marks omitted).  



          124      John II , 30 P.3d 68, 73 (Alaska 2001) ("On remand, we instructed the  



superior court to determine the children's membership status by applying tribal law.  The  

superior court did so and concluded that the children were eligible for membership. . . .  

                                                      

Because  the  superior  court  correctly  determined  that  Northway  had  subject  matter  

                                                         

jurisdiction over this case, it properly concluded that there exists no jurisdiction-based  

reason to deny comity to Northway's order." (citation omitted)).  



          125  

                                                                                                                

                    COHEN 'S HANDBOOK , supra note 93,  11.02[3], at 838 ("The quality or  

                                                                                           

nature  of  the  member-parent's  or  child's  relationship  with  the  tribe  should  not  be  

                                                                                                  

germane [in the ICWA context] once it is established that the parent or child is a member  

of a federally recognized tribe or that the child is eligible to be a member.").  



          126      No. 3:06-cv-211 TMB, 2008 WL 9434481 (D. Alaska Feb. 22, 2008), aff'd,  



344 F. App'x 324 (9th Cir. 2009).  



                                                            -46-                                                      6926
  


----------------------- Page 47-----------------------

                                                                                                                     

issue . . . [was] whether the tribal court had concurrent jurisdiction with the State to  

initiate a child protection matter,"127 the federal district court explained:  



                                                                                           

                    Defendants note that the Alaska Supreme Court has held that  

                                                                                             

                    a "tribe only has subject matter jurisdiction over the internal  

                    disputes  of  tribal  members."    [John  I ,  982  P.2d  at  759.]  

                    Similarly, in  Venetie, the Ninth Circuit noted in a footnote  

                    that  "[a]  tribe's  authority  over  its  reservation  or  Indian  

                                     

                    country  is  incidental  to  its  authority  over  its  members."  

                                                                                      

                    [Native Village of Venetie I.R.A. Council v. State of Alaska ,  

                                                                                

                    944  F.2d  548, 559  n.2  (9th  Cir. 1991)  (citation  omitted).]  

                                                                                         

                    However, it is the membership of the child that is controlling,  

                    not the membership of the individual parents.[128]  



                                                                                              

As the Simmondses note, this was the position taken by the United States  Solicitor  



                                         

General in advocating the denial of certiorari by the United States Supreme Court in  



           129  

Kaltag .        Certiorari was denied, leaving intact the Ninth Circuit's affirmance of the  



district court's conclusion that the tribal court in Kaltag had jurisdiction despite the  

nonmember status of one of the parents.130  



          127       Id. at *3.  



          128       Id.  at  *6  (emphasis  and  alteration  in  original)  (citations  in  footnotes  



relocated to main text).  



          129       Hogan  v.  Kaltag  Tribal  Council ,  131  S.  Ct.  66  (2010).    The  Solicitor  



General set out arguments very similar to those of the Simmondses.  See Brief for the  

United States as Amicus Curiae at *12, Hogan , 131 S. Ct. 66 (No. 09-960), 2010 WL  

                      

3391759 ("ICWA's jurisdictional scheme appropriately focuses on the status of the child  

                                                                                                                 

at the heart of the custody proceeding, not the identities of other parties . . . .  Neither  

     

tribal jurisdiction under Section 1911(a) and (b), nor Section 1911(d)'s requirement to  

                                                                                            

extend full faith and credit to tribal proceedings is subject to an exception based on the  

                                         

membership status of some other party.").  



          130       Kaltag , 2008 WL 9434481, at *6.  



                                                             -47-                                                        6926
  


----------------------- Page 48-----------------------

                             b.	       The State's argument - that Montana and Strate create  

                                       a dispositive presumption against tribal jurisdiction so  

                                       that  exhaustion  was  not  required  in  this  case  -  is  

                                                                                  

                                       unavailing.  



                    The State argues that "even if [Parks's] case is subject to the federal . . .  



exhaustion requirement, it falls under the exception that applies when 'it is plain that no  

                                                                                                              



federal  grant  provides  for  tribal  governance  of  nonmembers'  conduct,'  such  that  



exhaustion 'would serve no purpose other than delay.' "  The State asserts that "federal  



                                                                       

case law presumes that tribes lack jurisdiction over nonmembers, especially on non- 



                                                                          

Indian fee land," relying heavily on the State's  interpretation of Montana v. United  



         131	                                            132 

States       and Strate v. A-1 Contractors                   to argue that "it is plain that the Minto Tribe  

                                                                                      



does not have jurisdiction over Parks."  The State argues that Montana and Strate read  

                                                            



in conjunction  constitute a "presumptive lack of jurisdiction" so that the exhaustion  

                        



requirement  does  not  apply.    We  disagree.    The  United  States  Supreme  Court  has  



repeatedly and explicitly emphasized the context-bound nature of each of its rulings on  



                                            

tribal court civil jurisdiction, looking to various indices of congressional and executive  



                                                 

action and intent in enlarging or diminishing retained inherent tribal sovereignty.  We  



decline  to  read  into  the  Supreme  Court's  precedent  a  presumption  that  applies  



                                                                              

ecumenically across all contexts so that the Minto  Tribal Court had no colorable or  



plausible claim to jurisdiction over custody matters affecting S.P.  



                                                                                         

                    In Montana v. United States , the United States Supreme Court considered  



              

whether a tribe's regulatory authority included the "regulation of hunting and fishing by  



          131       450 U.S. 544 (1981).  



          132       520 U.S. 438 (1997).  



                                                            -48-                                                           6926  


----------------------- Page 49-----------------------

                                                                                                     133 

                                                         

nonmembers of a Tribe on lands no longer owned by the Tribe."                                             The Court concluded  



                                                                                                          

that while "Indian tribes retain their inherent power to determine tribal membership, to  



regulate domestic relations among members, and to prescribe rules of inheritance for  



members,"  the  regulation  at  issue  was  not  authorized  by  "the  general  principles  of  



                                                  134  

retained inherent sovereignty."                         The Court articulated "the general proposition" that  



                                                                                                                

unless there has been "express congressional delegation" the "inherent sovereign powers  



                                                    

of an Indian tribe do not extend to the activities of nonmembers of the tribe," subject to  



                          135  

two exceptions.                



                     While the Montana Court stated its "general proposition" in categorical  



terms,  its  actual  conclusion  depended  on  its  examination  of  federal  executive  and  



                                                                                                   136  

legislative action and intent regarding the regulation at issue.                                        This sensitivity to the  



                                                                                                               

federal government's plenary authority over Indian affairs, including Congress's power  



                               

to determine tribal authority over nonmembers, was emphasized by the Court in National  



Farmers Union Insurance Companies v. Crow Tribe of Indians , where the Court held  



                                                                                        

that "the existence and extent of a tribal court's [civil] jurisdiction will require a careful  



examination of tribal sovereignty, the extent to which that sovereignty has been altered,  



           133       450 U.S. at 564.  



           134       Id. at 564-65.  



           135       Id.   at 565.        The first exception concerned a tribe's regulation "through         



taxation, licensing, or other means, the activities of nonmembers who enter consensual   

relationships  with  the  tribe  or  its  members,  through  commercial  dealing,  contracts,  

leases, or other arrangements."  Id.  The second exception involved a tribe's "retain[ed]  

inherent power to exercise civil authority over the conduct of non-Indians on fee lands  

within  its  reservation  when  that  conduct  threatens  or  has  some  direct  effect  on  the  

political integrity, the economic security, or the health or welfare of the tribe."  Id. at  

                                                                                                            

566.  



           136       Id. at 557-63.  



                                                                  -49-                                                             6926
  


----------------------- Page 50-----------------------

divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch  



                                                                                                                      137  

                                                                                         

policy as embodied in treaties and elsewhere, and administrative or judicial decisions." 



                   In  Strate, the Court extended the Montana framework governing tribal  



regulatory  authority  to  tribal  civil  adjudicatory  authority  referring  to  the  Montana  



                                      138  

                                           As in Montana , the Strate Court described its framework  

decision as "pathmarking."  



on  tribal  civil  adjudicatory  authority  over  nonmembers  in  broad,  categorical  terms:  



"[A]bsent a different congressional direction, Indian tribes lack civil authority over the  



                                                                                                               139  

                                                                                                                    But  

conduct of nonmembers on non-Indian land . . . subject to two exceptions . . . ." 



the Court took pains to clarify that Strate was not overruling National Farmers Union  



                                    140  

                                                                                                    

on the basis of Montana .                And the Court also reaffirmed that the  Montana Court  



                                                                                                                  

"examined the treaties and legislation relied upon by the Tribe" and "[o]nly after and in  



light  of  that  examination  did  the  Court  address  the  Tribe's  assertion  of  'inherent  



                     141  

sovereignty.' "           



                                                                                                             

                   In Nevada v. Hicks , the Court considered tribal court jurisdiction over state  



                                                                                                       142 

                                                                                                            The Court  

law enforcement officers who had executed a search warrant on tribal land. 



made clear that "[t]he principle of Indian law central to this aspect of the case is our  



         137       471 U.S. 845, 855-56 (1985) (citation omitted).
  



         138       Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997).
  



         139       Id. at 446.
  



         140       Id. at 448 ("National Farmers and Iowa Mutual , we conclude, are not at
  



odds with, and do not displace, Montana .").   



         141       Id. at 449-50.   



         142       533 U.S. 353, 355 (2001).  



                                                          -50-                                                    6926
  


----------------------- Page 51-----------------------

                             143  

holding in Strate"               but also concluded that "[o]ur holding in this case is limited to the            



question of tribal-court jurisdiction over state officers enforcing state law.  We leave  



                                                                                                                                       144  

                                                                                                                     

open the question of tribal-court jurisdiction over nonmember defendants in general." 



                                                                                                  145  

                                                              

In her concurrence, Justice Ginsburg emphasized this point.                                            She wrote separately  



specifically to make clear that neither the holding in Hicks nor the holding in  Strate  



                                                                                                              

should be presumed to answer tribal civil jurisdictional issues beyond their specific facts:  



                                                                                                              

"I write separately only to emphasize that Strate v. A-1 Contractors similarly deferred  



                                                                                                   

larger issues. . . . The Court's opinion, as I understand it, does not reach out definitively  



                                                                                            146  

to answer the jurisdictional questions left open in Strate ."                                      



                      In her concurrence in part, Justice O'Connor similarly clarified that she did  

                                                                                                                         



not  interpret  Montana  or  its  extension  to  tribal  adjudicatory  authority  in  Strate  to  

                                                                                                                           147  Rather  

establish "a broad per se  rule prohibiting tribal jurisdiction over nonmembers." 



than  establishing  a  rigid  framework,  Montana  "provides  principles  that  guide  our  

                                 



determination of whether particular activities by nonmembers implicate [tribal] sovereign  



                                                                                                       148  

interests to a degree that tribal civil jurisdiction is appropriate."                                       "Saying that tribal  



                                                                                                                  

jurisdiction must 'accommodat[e]' various sovereign interests does not mean that tribal  



           143       Id. at 357.
  



           144       Id. at 358 n.2.
  



           145       Id. at 386 (Ginsburg, J., concurring).
  



           146       Id. (citation omitted).
  



           147       Id. at 396 (O'Connor, J., concurring in part).
  



           148       Id. at 392.  
 



                                                                  -51-                                                            6926
  


----------------------- Page 52-----------------------

                                                                                   149  

                                                                                                      

interests are to be nullified through a per se rule."                                   Justice O'Connor also noted that  



"[w]e refused to foreclose entirely the civil jurisdiction of tribal courts over nonmembers  

as we had foreclosed inherent criminal jurisdiction over nonmembers"150 and reiterated  



the language from National Farmers Union quoted above.151  



                      In  sum,  reading  Montana ,  Strate,  and Hicks  in  conjunction,  it  is  clear  



                                                                

that Montana 's "general proposition" that tribal sovereign power "do[es] not extend to  



                                                                                                                       152 

                                                                                                                           must still be  

the activities of nonmembers" absent "express congressional delegation" 



                                                                                                     

interpreted in light of relevant action by the political branches of the federal government.  



Furthermore, Strate and Hicks explicitly limit their holdings on tribal jurisdiction to the  



                                153  

                                        As  Justice  Souter,  also  concurring  in  Hicks ,  noted,  "[t]ribal  

facts  of  each  case. 



           149        Id. at 395 (alteration in original) (citation omitted).  



           150        Id. at 398-99.  



           151        Id. at 399 (quoting Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians                                              ,  



471 U.S. 845, 855-56 (1985)) ("[T]he existence and extent of a tribal court's jurisdiction           

will  require   a  careful  examination  of  tribal  sovereignty,  the  extent  to  which  that  

sovereignty has been altered, divested, or diminished, as well as a detailed   study of  

relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and   

administrative or judicial decisions.").  



           152        Montana v. United States , 450 U.S. 544, 564-65 (1981).  



           153  

                                                                                                                                  

                      Similarly, the Court in Plains Commerce Bank v. Long Family Land &  

                                                                                                     

Cattle Co. rearticulated Montana 's "general proposition" as making "efforts by a tribe  

                                                                                                       

to regulate nonmembers, especially on non-Indian fee land, . . . 'presumptively invalid,' "  

                                                                                

554 U.S. 316, 330 (2008) (citation omitted), but proceeded to analyze federal executive  

                                                                                                        

and legislative intent with regard to the specific factual context of tribal regulation of the  

                                                                                      

sale of non-Indian fee land:  "In commenting on the policy goals Congress adopted with  

                                              

the General Allotment Act, we noted that '[t]here is simply no suggestion' in the history  

                  

of the Act 'that Congress intended that the non-Indians who would settle upon alienated  

                                                                                                          

allotted lands would be subject to tribal regulatory authority.' "  Id. at 337 (alteration in  

                                                                                                                         (continued...)  



                                                                    -52-                                                               6926
  


----------------------- Page 53-----------------------

adjudicatory jurisdiction over nonmembers is . . . ill-defined, since this Court's own  

                                                                                                                     154   We  

pronouncements on the issue have pointed in seemingly opposite directions." 



reject the State's argument that these precedents create a "presumptive lack of [tribal]  

                                                         



jurisdiction" over nonmembers so that Minto Tribal Court had no colorable or plausible  

                                                                    



claim  to  jurisdiction  and  Parks  was  not  required  to  exhaust  tribal  remedies  before  



instituting his state court action.   



                    The State does not cite a single federal or state court case in which the  



Montana  framework  has  been  applied  to  deny  full  faith  and  credit  to  a  tribal  court  



                                                                                                           

judgment in an ICWA-defined child custody proceeding because one of the parents was  



                                                                              

a non-tribal member, let alone a case where a court has held that tribal jurisdiction was  



                                                                                             

so plainly lacking as to excuse exhaustion of tribal remedies.  The superior court noted  



                                              

that "[o]ne state supreme court has recently assumed Montana 's application in the ICWA  



context where  a  tribe attempts to terminate the parental rights of a nonmember and  



                                                                                           

opined (in dicta) the tribe was without jurisdiction to do so," referring to the Minnesota  



                                                                          155  

                                                                               The superior court was correct to  

Supreme Court's decision in In re Welfare of R.S . 



note  that  the  one  sentence  reference  to  Montana  in  the  R.S.  case  was  dicta  as  the  

                



Minnesota Supreme Court was concerned with the application of ICWA to preadoptive  

                                                                                                            



placement proceedings, not with the jurisdiction of tribal courts to terminate the parental  

                                                                            



                                               156  

rights  of  non-tribal  members.                      When  presented  with  an  argument  against  the  



          153(...continued)  



original) (citation omitted).  



          154       533 U.S. at 376 (Souter, J. concurring) (alterations in original) (citation and   



internal quotation marks omitted).  



          155       805 N.W.2d 44, 53 (Minn. 2011).  



          156  

                                                                                            

                    Id. ("Although not essential to our resolution of the case, we nevertheless  

                                                                                                            (continued...)  



                                                             -53-                                                        6926
  


----------------------- Page 54-----------------------

jurisdiction  of  a  tribal  court  to  terminate  the  parental  rights  of  a  non-tribal  member  



                                          

parent, the Virginia Court of Appeals persuasively distinguished R.S. as limited to the  

issue of tribal jurisdiction over preadoptive placement proceedings.157  The Virginia court  



                                                                                                         

concluded  that "[ICWA] does not limit tribal court jurisdiction  to  cases where  both  



                                                          

parents are Indian. . . .  It applies to parents of Indian children across the board.  The  



                       

absence of an express mention of non-Indian parents does not alter the plain language  

reading of the statute."158  



                                                                 

                     In the context of this appeal, we need decide only whether the Minto Tribal  



                                                                                                             

Court's claim to jurisdiction, based on S.P.'s membership or eligibility for membership  



                                                                                      

in the Native Village of Minto, is colorable or plausible.  After our "careful examination  



                                                                                                                   

of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or  



                                                                                           

diminished, as well as a detailed study of relevant statutes, Executive Branch policy as  



                                                                                                                           159  

embodied  in  treaties  and  elsewhere,  and  administrative  or  judicial  decisions,"                                         we  



conclude  that  the  Minto  Tribal  Court's  claim  to  jurisdiction  is  both  colorable  and  



                  

plausible.   Therefore, Parks does not satisfy the exception to the exhaustion of tribal  



remedies doctrine identified in Strate .  



           156(...continued)  



address this [question].").  



           157       Thompson v. Fairfax Cnty. Dep't of Family Servs.                             , 747 S.E.2d 838, 849  



(Va. App. 2013) ("The issue before the court in [                          R.S.] was whether Congress intended  

to  permit  transfer  of  adoptive  and  pre-adoptive  placement  proceedings  to  tribal  

courts. . . . Thus, the decision in R.S. does not  support the argument that the tribal court  

                                                                                                               

lacks jurisdiction to terminate father's parental rights.").  



           158  

                                                                                                

                    Id. (citing Jimenez v. Quarterman , 555 U.S. 113, 118 (2009) ("[W]hen the  

statutory language is plain, we must enforce it according to its terms.")).  



           159  

                                                            

                    Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians , 471 U.S. 845, 855- 

56 (1985) (citation omitted).  



                                                               -54-                                                         6926
  


----------------------- Page 55-----------------------

          F.        Summary  



                                                                                              

                    The Minto Tribal Court's decision to terminate the parental rights of Parks  



                                                                         

and Stearman is entitled to full faith and credit  under ICWA because they failed to  



                                                                                                                

exhaust tribal court remedies before collaterally attacking the decision in state court.  Full  



faith and credit entails a high degree of respect for tribal courts.  As a measure of that  



                                                

respect,  we  decline  to  allow  Parks  to  relitigate  his  minimum  due  process  and  



                                                               

jurisdictional claims in Alaska state courts when he failed to exhaust tribal remedies by  



appealing to the Minto Court of Appeals.  Parks has not satisfied any of the exceptions  



                                                     

to the exhaustion of tribal remedies doctrine.  We therefore conclude his suit in Alaska  



state court must be dismissed.  



V.        CONCLUSION  



                                                                                                  

                    We REVERSE the superior court's order denying full faith and credit to the  



                     

Minto Tribal Court's decision terminating the parental rights of Parks and Stearman and  



REMAND for dismissal of Parks's state court claim with prejudice.  



                                                            -55-                                                       6926
  

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