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


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

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Asa'carsarmiut Tribal Council v. Wheeler (11/21/2014) sp-6967

Asa'carsarmiut Tribal Council v. Wheeler (11/21/2014) sp-6967

         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@akcourts.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



ASA'CARSARMIUT TRIBAL                                    )  

COUNCIL,                                                 )        Supreme Court No. S-15318  

                                                         )  

                            Appellant,                   )        Superior Court No. 3AN-12-04581 CI  

                                                         )  

          v.                                             )        O P I N I O N  

                                                         )  

JOHN D. WHEELER III,                                     )        No. 6967 - November 21, 2014  

                                                         )  

                            Appellee.                    )  

                                                         )  



                   Appeal from the Superior Court of the State of Alaska, Third  

                               

                   Judicial District, Anchorage, Andrew Guidi, Judge.  



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

                   Anchorage,           for     Appellant.            Carl      D.     Cook        and  

                                                                               

                   Whitney-Marie  K.  Bostick,  Law  Office  of  Carl  D.  Cook,  

                   P.C., Anchorage, for Appellee.  



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

                                                                                      

                   Bolger, Justices.  



                   FABE, Chief Justice.  



I.        INTRODUCTION  



                   J.W. is the son of Jeanette Myre, a member of the Asa'carsarmiut Tribe, and  

                                                                                        



John Wheeler, a non-member.  In 2007 Myre petitioned the Asa'carsarmiut Tribal Court  

                                            



to assume jurisdiction over the custody of J.W.  After a hearing in which both parents  

                



participated,  the  tribal  court  awarded  Myre  primary  physical  custody  and  granted  

                                                                                             


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

Wheeler limited visitation rights.  In 2011 Wheeler kept J.W. at the end of a visitation  

                                                                                                               



period, alleging that he was concerned about J.W.'s safety if he were returned to Myre's  

                                                                                        



custody.    Wheeler  also  initiated  custody  proceedings  in  state  superior  court.    Myre  



                                                                                                                     

moved to enforce the 2007 tribal court custody order; the superior court found it to be  



a lawful custody order and returned J.W. to Myre's custody.  



                                                                                                                  

                   In 2012 Myre was arrested for child endangerment, and the State of Alaska  



                                                                                                              

assumed protective custody of J.W.   Wheeler moved for modification of the custody  



                                                                                           

order in the superior court.  The Asa'carsarmiut Tribal Council intervened in the superior  



court proceeding to argue that the superior court lacked jurisdiction to modify the tribal  



                                                                               

court custody order.  The superior court concluded it had modification jurisdiction and  



                                                                                               

determined there had been substantially changed circumstances such that modification  



was in J.W.'s best interests.   



                    The superior court awarded Wheeler primary physical custody.  Neither  



Wheeler nor Myre has appealed the superior court's decision, but the tribal council  



                                                                                          

appeals, arguing that the superior court lacked modification jurisdiction.  The narrow  



                                                                                                                  

question before us in this appeal is thus whether the tribal council has standing to appeal  



                                                               

the superior court's modification decision in light of the parents' election not to appeal  



                                                        

that decision.  We conclude that under this circumstance, the tribal council does not have  



standing, and we therefore dismiss the appeal.  



II.       FACTS AND PROCEEDINGS  



          A.       Background And Tribal Court Proceedings  



                                   

                   J.W. was born in 2005 to John D. Wheeler III and Jeanette Myre.  Myre is  



                                                                                                 1 

a member of the Asa'carsarmiut Tribe, a federally recognized tribe,  and J.W. is eligible 



          1        Indian Entities Recognized and Eligible To Receive Services From the
  



                                                                                              

United States Bureau of Indian Affairs, 78 Fed. Reg. 26,384, 26,388 (May 6, 2013)
  

                                                                                                           (continued...)
  



                                                             -2-                                                          6967  


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

for tribal membership.  Wheeler is not a tribal member and resides in Washington.  



                    In December 2007 Myre successfully petitioned the Asa'carsarmiut Tribal  



                                                                                                           

Court to assume jurisdiction over the custody of J.W.  The tribal court held a custody  



hearing that month, in which both Myre and Wheeler participated.  The tribal court  



awarded primary physical and sole legal custody to Myre, emphasizing the importance  



of  fostering  J.W.'s  awareness  of  his  Asa'carsarmiut  cultural  heritage  and  identity.  



                                                                                              

Wheeler was granted limited visitation rights.  In its order, the tribal court noted that it  



would "retain jurisdiction over the custody of [J.W.]"  



                                                                                       

                    In 2008 Wheeler petitioned the tribal court to modify the child support  



                                                                     

order and to request additional visitation with J.W.  The tribal court declined to modify  



                                                                                                              

the order and denied the request for additional visitation.  Wheeler also petitioned in  



                                                                                                        

2009 asking the tribal court to reopen the custody case on the ground that J.W. was old  



                                                                              

enough to travel between Alaska and Washington.  There is no evidence in the record  



that the tribal court responded to this petition.  



                                                         

                    In December 2011 J.W. traveled to Washington to spend Christmas with  



Wheeler.  J.W. was scheduled to return to Alaska on December 30, but Wheeler kept  



                                                                        

J.W. in Washington.  On December 30 Wheeler emailed Jerald Reichlin, the lawyer for  



                                                                                      

the tribal court, informing him that he believed that there had been "a dramatic change  



in circumstances" that impacted J.W.'s welfare.  Specifically, Wheeler informed Reichlin  



                                                                                                

that he had been unable to contact Myre and that he believed that she was in hiding from  



                                                                                  

the father of her other two children, George Johnson.  In his email, Wheeler wrote:  "I  



                                                                                                        

respectfully request a hearing before the Asa'Car[s]a[r]m[iu]t Tribal Council, seeking  



                                                                             

'full custody' of my son."  Two days later, Wheeler further informed Reichlin that Myre  



          1(...continued)  



(current list of federally recognized tribes).  



                                                              -3-                                                           6967  


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

had been on a "binge, blackout style, drunk" and that Johnson had made death threats to  

                                                                                                                             



her; he indicated that he had spoken with Myre and that she had "agreed that [J.W.] was   



safer and in better care down here in Washington with [Wheeler]."  On January 3, 2012,  



Reichlin responded to Wheeler:  



                       I have received your correspondence and your notes and I  

                       shall forward them to the Tribe.  There is nothing before the  

                                                                                                

                       Tribal Court at this moment.  [J.W.'s] travel arrangements  

                       were  between  you  and  Jeanette.    The  Tribal  Court  is  not  

                       involved in changes of travel plans.  If you wish to  file a  

                                                                                                                      

                       motion  to  alter  custody  orders,  you  are  free  to  do  so.    I  

                                                    

                       believe that you know the process; you will need to make  

                       your request in writing and support it with information you  

                                                                                          

                       want the court to consider. . . . Also, you should be aware that  

                                                                                      

                       you and Jeanette have latitude to alter your arrangements.  If  

                       the parties are in accord, unless there is some obvious harm  

                       to [J.W.], the Tribal Court will not ordinarily get involved in  

                       voluntary   changes   to   established   visitation   or   custody  

                       schedules.  



                       It does not appear from the record that Wheeler had further correspondence  

                                           



with Reichlin or the tribal court.  



                       In a later affidavit, Myre stated that in early January 2012 she contacted the  

                                                                                    



tribal court for assistance in regaining custody of J.W.  She reported that the tribal court  

                                                                                               



did not call her back for several days and that the tribal court administrator then told her  



that  the  tribal  court  was  unable  to  help  her.                              Myre  stated  that  another  tribal  court  

                                                                                                                                  



administrator later agreed to contact Wheeler, but that the tribal administrator told Myre  

                                                                                              



that she had not received a response from Wheeler.  



            B.         Superior Court Proceedings  



                       On January 11, 2012, Wheeler filed a complaint for custody in superior  



court  in  Anchorage.    His  initial  complaint  did  not  disclose  the  prior  tribal  court  

                                                                                        



proceedings or custody order.  The jurisdiction affidavit indicated that Myre and J.W.  

                                                               



                                                                        -4-                                                                  6967
  


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

had  resided  in  Anchorage  for  the  previous  seven  months,  from  June  2011  to  

                                                                                                        



December  2011.    On  February   8   Wheeler  filed  a  petition  for  a  domestic  violence  



protection order in which he disclosed the existence of the tribal court child custody  



order.  



                                                                                           

                   Myre responded to Wheeler's custody complaint on February 10 by filing  



                                                                                                       

a motion to compel the return of J.W. and seeking a domestic violence protective order  



on the basis of custodial interference.  She also petitioned the superior court to register  



                                                                

the tribal court child custody order and to enforce it on an expedited basis under the  



                                                                                                       

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  Myre indicated  



               

that "she  will likely seek [a] corresponding modification of the tribal court order to  



                                                                                                            

reflect the need to limit and supervise Mr. Wheeler's future visitation and contact with  



[J.W.]"  There is no evidence in the record of any attempt by Myre to modify the custody  



order in tribal court.  



                   In  her  motion  for  expedited  consideration,  Myre  included  a  footnote  



regarding tribal court jurisdiction:  



                                                                          

                   Defendant would emphasize that her filing of this Petition is  

                   not and should not be construed as her express or implicit  

                                                            

                   waiver of the tribal court's having exclusive and continuing  

                   jurisdiction over the parties or the subject matter of [J.W.'s]  

                   custody.  Therefore, while Plaintiff has filed this case with  

                   the implied (but not expressed in his Complaint) assertion  

                                                                

                   that the Alaska state court has jurisdiction regarding custody  

                   issues, Defendant vigorously maintains that this court does  

                   not have subject matter jurisdiction to modify the custody  

                   order issued by the tribal court that is currently in place, and  

                                                 

                   that jurisdiction lies only in the Alaska court's recognition  

                   and enforcement of that order.  



                   The superior court denied Myre's petition to register the tribal court custody  



order, concluding that "the Alaska legislature declined to include tribal court custody  

                                                                                                          



                                                             -5-                                                      6967
  


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

                                     

orders within the scope of those orders that may be registered and enforced under [the  



                                                                                          

UCCJEA]" and therefore "the statute must be interpreted as being limited to enforcement  



             

of state court child-custody determinations."  The superior court noted that Washington  



had included tribal court custody orders when it adopted the UCCJEA and that "Myre  



should  be  successful  in  registering  the  custody  order  in  the  specific  county  of  



                                                                                                              

Washington where [J.W.] is located, and thereby secure its enforcement by the superior  



                                                                                         

court of that county."  The superior court "directed [Myre] to pursue enforcement of the  



order in the state of Washington," but it does not appear from the record that Myre  



pursued any action in Washington.  



                                                                                                           

                    The superior court held a domestic violence protection order hearing in  



                                           

February 2012 and issued  supplemental findings discussing the tribal court custody  



                                                                                                       

order.  Specifically, the superior court found that "Mr. Wheeler's retention of [J.W.]  



                                                                                              

contravenes the established, lawful tribal court custody order as Ms. Myre is the lawful  



custodian."  The superior court therefore concluded that Wheeler had committed the  



crime of custodial interference; the superior court granted Myre's petition for a long-term  



domestic violence protection order against Wheeler and returned J.W. to Myre's custody.  



                                                                                                          

                    In October 2012 the State of Alaska assumed custody of J.W. and initiated  



                                                                                         

a Child In Need of Aid (CINA) proceeding against Myre following an incident during  



                                                                                            

which a vehicle driven by George Johnson with Myre, J.W., and her two other children  



as passengers was stopped by police officers.  Myre was arrested and charged with  



                                                                                    

endangering the welfare of the children as a result of being impaired by intoxication.  



                                             

Johnson  was  arrested   and   charged  with  driving  under  the  influence  and  child  



                                                 

endangerment.  Wheeler filed a motion in the superior court for immediate modification  



of   custody.      In   her   response   to   this   motion,   Myre   "recognize[d]   entirely   the  



                                   

appropriateness under the circumstances of modifying the interim custody arrangement  



                                                                                                        

in this matter so that [J.W.] [could] be suitably placed in a home that is best for him, and  



                                                               -6-                                                         6967
  


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

also  under[stood]  that  such  placement  [would]  likely  be  with  his  biological  father."  



                                                                                                      

(Emphasis in original.)  But the superior court denied Wheeler's motion and stayed the  



custody action pending developments in the CINA proceeding.  



                     The  superior  court  scheduled  a  trial  on  the  custody  matter  for  early  



                                                                                                           2 

                                                             

April 2013.  The week before trial, the Asa'carsarmiut Tribal Council  filed a motion to 



                  

intervene, arguing that the superior court should either refer the custody dispute to the  



                                                                             

tribal court or dismiss the action on the basis of the tribal court's retained jurisdiction  



                                                                                                              

over the matter.  Wheeler opposed the tribal council's intervention, arguing that the  



                                                                                                                    

motion was untimely and that the tribal council lacked a sufficient interest in the subject  



                                                          

matter  of  the  dispute.    Myre  filed  a  non-opposition  to  the  tribal  council's  motion,  



                                                                              

agreeing with the tribal council that "[d]ismissal is warranted, because as the court of  



                                  

original jurisdiction, the [tribal court] is the proper forum to address and decide any  



application by either party for a modification of its previously issued and still-in-effect  



 [child custody order]."    



                     The  superior  court  concluded  that  the  tribal  council  did  not  meet  the  



                           

requirements of intervention as a matter of right and that the intervention "is being made  



                                                      

extremely late in this proceeding and at least a year after the Council knew or should  



                                                                                

have known not only that the case existed but that its 2007 custody order would not be  



                                                   

registered."  The superior court also made clear its determination that the superior court  



                                                                                                                    

proceedings  were  "in  no  way  in  derogation  of  the  2007  [tribal  court]  order  or  the  



                                                                                                

Council's jurisdiction," and were "not designed to set aside or invalidate the 2007 order."  



                                                                   

Rather, the superior court concluded that Wheeler was "seeking to modify the earlier  



                                                                                                         

custody decision in light of substantial changes in circumstances of the parties that have  



           2  

                                                                                                                  

                     In its appellant's brief, the tribal council indicates that it is the governing  

               

body of the Asa'carsarmiut Tribe of Mountain Village and that the tribal court is the  

judicial arm of the Asa'carsarmiut Tribe.    



                                                                 -7-                                                               6967  


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

                                                   

occurred over the years since the Council's order was issued" (emphasis in original) and  



                                           

that the superior court had concurrent jurisdiction with the tribal court to modify the  



                                                                         

child custody order.  Nevertheless, the superior court granted permissive intervention to  



                                                                   

the tribal council for the "limited purpose of defending its jurisdiction and preserving the  



                                                                                                          

issue for appeal."  The tribal council did not otherwise participate in the custody trial.  



                                       

                    At trial the superior court considered the testimony of several witnesses,  



                                                                                                               

including Wheeler and Myre, as well as a custody investigator's report.  In its findings  



                                                                                                            

of fact and conclusions of law, issued in early May 2013, the superior court held that it  



had "personal and subject matter jurisdiction over the parties, the minor child, and the  



                                                           

custody issues in this matter" and that it was "in the best interest of the minor child that  



[Wheeler] be awarded primary physical and sole legal custody with [Myre] receiving  



                            

visitation" on the condition that she maintain her sobriety.  The superior court also made  



                                     

findings relevant to the issue of changed circumstances since the February 2012 hearing  



(when  the  superior  court  found  Wheeler  had  committed  custodial  interference  in  



                

violation of the tribal court child custody order).  The superior court found that "there  



                                     

have been at least two relapses of alcohol abuse since then by [Myre], both of which  



                             

involved conduct endangering the safety of the child," and that "there was a strong  



                             

factual  basis  for  [Wheeler's]  concern  when  he  declined  to  return  the  child"  in  



December 2011.  The superior court noted that it was "particularly troubled" by the  



response of state agencies to Myre's behavior, which "placed [J.W.] at risk," and that  



                                              

"[t]he [c]ourt [was] not going to gamble with [J.W.'s] safety again."  The superior court  



adopted the custody investigator's analysis and conclusions and entered a final custody  



                                                                            

decree awarding Wheeler sole legal custody and primary physical custody.  Myre was  



granted visitation rights.  



                                                                       

                    Myre requested that the superior court stay and reconsider its final custody  



decree and findings of fact and conclusions of law.  The superior court declined to stay  



                                                                -8-                                                         6967
  


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

enforcement of the decree but provided both Wheeler and the tribal council with an  



                                                                             

opportunity  to  respond  to  Myre's  reconsideration  motion  and  her  objections  to  the  



court's  findings  and  conclusions.    Both  Wheeler  and  the  tribal  council  submitted  



                                                                                      

additional briefing, and because the record does not reflect any ruling on reconsideration  



by the superior court within 30 days of the responsive briefing, Myre's motion was  

deemed denied.3  



                    Neither   Myre   nor   Wheeler   appealed   the   superior   court's   custody  



                                                                        

modification   decree,   but   the   tribal   council                    filed   an   appeal   to   this   court   in  



September 2013.  Wheeler opposes the tribal council's appeal on standing grounds.  



III.      STANDARD OF REVIEW  



                                                                                                                       4  

                    "Issues of standing are questions of law that we review de novo."   "In  



                                                                                                       

reviewing  a  superior  court's  comity  determination  .  .  .  we  apply  our  independent  



                 5  

judgment."    In applying de novo review and "exercising our independent judgment, we  



                                                                                                              

will  adopt  the  rule  of  law  that  is  most  persuasive  in  light  of  precedent, reason,  and  

policy."6  



          3         Alaska R. Civ. P. 77(k)(4) provides:  "The motion for reconsideration shall  



be decided by the court without oral argument.  If the motion for reconsideration has not  

                                    

been ruled upon by  the  court within 30 days . . . of the date of filing of a response  

                                      

requested by the court . . . the motion shall be taken as denied."  



          4  

                                                

                    Friends of Willow Lake, Inc. v. State, Dep't of Transp. & Pub. Facilities,  

Div. of Aviation & Airports , 280 P.3d 542, 546 (Alaska 2012).  



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



          6         John v. Baker  (John I), 982 P.2d 738, 744 (Alaska 1999).  



                                                              -9-                                                       6967
  


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

IV.       DISCUSSION  



          A.        The Tribal Council Lacks Standing To Bring This Appeal.  



                    This  case  presents  an  unusual  procedural  posture  in  that  neither  of  the  



                                                                                                

parties who actually contested  custody in the superior court has appealed the superior  



court's  custody  order.    Instead,  the  tribal  council,  which  was  granted  permissive  



                                                              

intervention by the superior court for the "limited purpose of defending its jurisdiction  



and  preserving  the  issue  for  appeal,"  brings  this  appeal  to  "vindicate  its  retained  



sovereignty."  



                                                                       

                    Wheeler has consistently opposed the tribal council's involvement in this  



                                                                                                  

case and  now  challenges the tribal council's standing  to  appeal the superior  court's  



                                                                  

custody order, arguing that the tribal council lacks a cognizable injury-in-fact.  The tribal  



                                                                                        

council responds (1) that Wheeler did not raise the issue of the tribal council's standing  



                               

in the superior court and therefore this court should not consider it on appeal; and (2) that  



                                                                                            

this court's precedent requires only an "identifiable trifle" for a party to have "standing  

                                                   7 and the tribal council's sovereign interest and injury  

to fight out a question of principle,"                                                 



are  sufficient  under  this  standard.               We  conclude  that  the  tribal  council's  interest  in  

                                                                                                  



ensuring  recognition of its tribal court's custody orders is not sufficient to establish  

               



standing to bring this appeal of a child custody determination when neither parent has  



chosen to appeal the superior court's decision.  



          7        Ruckle v. Anchorage Sch. Dist. , 85 P.3d 1030, 1041 (Alaska 2004) (quoting  



Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987)).  



                                                             -10-                                                          6967  


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

                    1.        Wheeler preserved his standing argument.  



                                                                                                                                 8  

                                                                                                 

                    "As a general rule, we will not consider arguments first raised on appeal." 



                                                                                               

But we have recognized an exception to this general rule:  "We will consider arguments  



not raised explicitly in the [trial court] if the issue is '1) not dependent on any new or  



                                                                                 

controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could  

have been gleaned from the pleadings.' "9  



                    In  his  opposition  to  the  tribal  council's  motion  to  intervene,  Wheeler  



                                                                                                                 10             11  

                                                                                                                     and (b). 

contested the tribal council's intervention under both Alaska Civil Rule 24(a) 



          8         Askinuk Corp. v. Lower Yukon Sch. Dist.                    , 214 P.3d 259, 266 (Alaska 2009).  



          9  

                                                                                                

                    McConnell v. State, Dep't of Health & Soc. Servs., Div. of Med. Assistance ,  

                                                                         

991 P.2d 178, 183 (Alaska 1999) (quoting State, Dep't of Revenue v. Gazaway, 793 P.2d  

1025, 1027 (Alaska 1990)).  



          10        Alaska R. Civ. P. 24(a) on intervention of right provides:  



                    Upon   timely   application   anyone   shall   be   permitted   to  

                    intervene in an action when the applicant claims an interest  

                                                                                                 

                    relating to the property or transaction which is the subject of  

                    the action and the applicant is so situated that the disposition  

                    of the action may as a practical matter impair or impede the  

                    applicant's   ability   to   protect   that   interest,   unless   the  

                                                                                             

                    applicant's  interest  is  adequately  represented  by  existing  

                    parties.  



          11        Alaska R. Civ. P. 24(b) on permissive intervention provides:  



                                           

                    Upon   timely   application   anyone   may   be   permitted   to  

                    intervene in an action when an applicant's claim or defense  

                                                       

                    and  the  main  action  have  a  question  of  law  or  fact  in  

                                                        

                    common. When a party to an action relies for ground of claim  

                    or defense upon any statute or executive order administered  

                            

                    by a federal or state governmental officer or agency or upon  

                                                       

                    any regulation, order, requirement, or agreement issued or  

                                                                                                              (continued...)  



                                                              -11-                                                         6967
  


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

                                                                                                                       

While  Wheeler  did  not  explicitly  contest  the  standing  of  the  tribal  council  in  his  



opposition,  he  did  argue  (1)  that  the  tribal  council  lacked  sufficient  "interest  in  the  



                                                                                                  

subject matter of the action" because "[t]he subject matter of these proceedings is not the  



integrity of the tribal court or its orders but the issue of custody in the best interests of  



                                                                                       

the minor child"; and (2) that "the tribal council's interests in [its] 'inherent sovereignty'  



and comity of [its] orders . . . are not impaired by these proceedings."  



                    Wheeler's argument against the tribal council's standing on appeal certainly  



                                                                                                   

could have been predicted from his opposition to its intervention.  We have recognized  



that arguments about the sufficiency of an interest to intervene under Rule 24(a) are also  



                                                                                                             12 

                                                                                                                 Therefore,  

relevant to the sufficiency of an interest to establish interest-injury standing. 



                                             

we  conclude  that  Wheeler's  arguments  against  the  tribal  council's  intervention  are  



                                                                                            

related closely enough to his standing argument that we will consider the issue of the  



tribal council's standing.  



          11(...continued)  



                    made pursuant to the statute or executive order, the officer or  

                                                                  

                    agency upon timely application may be permitted to intervene  

                    in  the  action.  In  exercising  its  discretion  the  court  shall  

                    consider  whether  the  intervention  will  unduly  delay  or  

                    prejudice the adjudication of the rights of the original parties.  



          12        See  Alaskans  for  a  Common  Language,  Inc.  v.  Kritz,  3  P.3d  906,  915  



(Alaska 2000) ("Under the interest-injury approach a party must have an interest which  

                                    

is adversely affected by the complained-of conduct. The degree of injury need not be  

great . . . .  This threshold is lower than the interest needed to satisfy Rule 24(a) where  

                                                                             

the interest must be 'direct, substantial, and significantly protectable.'  Because we held  

                                                                                                                      

above that [the members of an association] have a sufficient interest to satisfy Alaska  

                                                                                            

Civil Rule 24(a), they necessarily also satisfy that element of the associational standing  

                           

requirement." (citations omitted)).  



                                                             -12-                                                        6967
  


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

                   2.	       The tribal council fails to establish interest-injury standing to  

                             bring this appeal.  



                   "Standing is a rule of judicial self-restraint based on the principle that courts  



                                                                                                 13  

should not resolve abstract questions or issue advisory opinions."                                   There are several  



                                                                            

types of standing, but the tribal council makes clear in its brief that it "relies on interest- 



                                                                                                       

injury standing."  "To establish interest-injury standing plaintiffs must demonstrate that  



        

they have a sufficient personal stake in the outcome of the controversy and an interest  



                                                                                       14  

which is adversely affected by the complained-of conduct."                                 



                             a.	       Characterization of the tribal council's interest and injury  



                   In its limited appearance at the superior court's custody trial, the tribal  

                                                                    



council stated that its concern was with "the dignity of the tribal court and the tribal  



                                                                                         

court's orders" and that it did not intend to present evidence or otherwise participate in  



                                                       

determining the best interests of J.W. or the appropriate custody arrangement.  On appeal  



the  tribal  council  similarly  characterizes  its  interest  as  "vindicat[ion  of]  its  retained  



sovereignty."  



                                         

                   It is far from self-evident that the governing body of a sovereign entity,  



                                                                                                      

such  as  the  tribal  council,  has  standing  to  bring  an  appeal  of  a  child  custody  



determination when the parents themselves do not appeal and are apparently satisfied  



with the trial court's decision.  The Indian Child Welfare Act (ICWA) provides for the  

                                                                                                          15   But ICWA  

                                                                                                               

right of tribal intervention in state court proceedings governed by the act.  



          13       Keller  v.  French ,  205  P.3d  299,  302  (Alaska  2009)  (internal  quotation  



marks and citations omitted).  



          14       Id. at 304 (internal quotation marks and citations omitted).  



          15       25 U.S.C.  1911 (2012) provides that "[i]n any State court proceeding for  



the foster care placement of, or termination of parental rights to, an Indian child, the  

                                                                       

                                                                                                           (continued...)  



                                                            -13-	                                                      6967
  


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

                                                                           16  

does not apply to custody disputes between parents.                            The tribal council does not point  



to any case from any jurisdiction in which a tribe has intervened in an inter-parental  



                                                   

custody dispute and appealed the custody decision even though neither of the parents  



appealed.  Nor does the tribal council cite to any analogous cases in which a state or  



                                                     

foreign  country  has  intervened  in  a  custody  dispute  to  vindicate  its  sovereignty  or  



guarantee the dignity of its court's orders.   



                                                                                                             

                   In its initial briefing, the tribal council cites a single eminent domain case  



                                                                                                             17 

                                                                                                                the Ninth  

to support its argument.  In  United States v. City of Tacoma, Washington,  



Circuit  identified  multiple  bases  to  establish  the  United  States's  standing  to  sue  to  



invalidate a city's condemnation proceedings involving land Congress had allotted to  

tribal members, including injury to its property rights in the condemned land.18                                        The  



court noted that in addition to its rights as property holder and its status as trustee of  



                                                                                                          

tribal lands, "the United States has an independent, governmental interest when it has not  



                                                                                                                   19  

been  made  a  party  in  condemnation  proceedings  of  restricted  Indian  lands."                                     This  



                                                                                             

reference to an independent governmental interest, upon which the tribal council relies,  



          15(...continued)  



Indian custodian of the child and the Indian child's tribe shall have a right to intervene  

                                                                                                   

at any point in the proceeding."  There is no evidence in the record that the tribal council  

                                                                                                 

chose to intervene in J.W.'s CINA proceeding, where it had a statutory right to do so  

under ICWA.  



          16  

                                                                                                                   

                   John I , 982 P.2d 738, 747 (Alaska 1999) ("Based on this case law, the  

                                                                                          

conclusions of the Bureau of Indian Affairs, and the purpose of ICWA as expressed in  

                                                                                                                

its text and legislative history, we conclude that ICWA does not apply to this inter- 

parental custody dispute.").  



          17        332 F.3d 574 (9th Cir. 2003).  



          18       See id. at 579.  



          19       Id. (citing  United States v. Hellard, 322 U.S. 363, 366 (1944)).  



                                                            -14-                                                       6967
  


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

                                                                             

relates to the unique supervisory role of the federal government over Indian affairs, a role  



                                                                                                                                       

in  which  Congress  has  plenary  power  over  tribal  sovereignty  and  can  restrict  the  



                                                  20  

                                                                                                                            

alienation of tribal territory.                       While the tribal council certainly does have an interest in  



                                                                                        21  

                                                                                                      

adjudicating the domestic affairs of its members,                                           City of Tacoma is inapposite to the  



question of the tribal council's independent standing to appeal in this child custody  



             22  

matter. 



                                                                                                                                        

                        Following  oral  argument,  the  tribal  council  provided  this  court  with  



                                                                                                  

additional authority in support of its contention that it had standing to appeal.  But like  



                                                             

City of Tacoma, the cases cited do not speak clearly or persuasively to the tribal council's  



standing to appeal in this matter.  The supplemental authority includes cases on ballot  



            20          See  Hellard , 322 U.S. at 368 ("Restricted Indian land is property in which       



the United States has an interest. . . . The governmental interest throughout the partition       

proceedings is as clear as it would be if the fee were in the United States. The United   

States as guardian of the Indians is necessarily interested either in obtaining partition in                                             

kind where that course conforms to its policy of preserving restricted land for the Indians                                              

or in seeing that the best possible price is obtained where a sale is desirable." (citations               

omitted));  United States v. Candelaria, 271 U.S. 432, 443-44 (1926) ("The Indians of   

the pueblo are wards of the United States, and hold their lands subject to the restriction   

that the same cannot be alienated in any wise without its consent.                                                   A judgment or decree  

which operates directly or indirectly to transfer the lands from the Indians, where the  

United States has not authorized or appeared in the suit, infringes that restriction. The  

                                                                                        

United States has an interest in maintaining and enforcing the restriction, which cannot  

                                                     

be affected by such a judgment or decree.").  



            21          See John I, 982 P.2d at 754-59.  



            22          Moreover,  City of Tacoma does not directly address the question of an  



intervenor's standing to appeal because the United States brought the original action and  

                                   

the defendant city raised the federal government's standing as a ground to dismiss the  

                       

action.  See City of Tacoma, 332 F.3d at 578.  



                                                                          -15-                                                                     6967
  


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

initiative sponsors' standing to appeal judicial invalidation of the initiative,23 a state's  



                                                                                                                          24 

                                                                                                                              and  

standing to appeal a suit in which it was a named defendant in the original action, 



                     

the ability of governmental entities to appeal decisions that interfere with their statutory  



                              25  

duties to the public.             None of these categories of cases is applicable here.  

                    The  tribal  council  also  cites  Matter  of  J.R.S. ,26                      a  case  in  which  we  



                                                                            

recognized a tribe's right to intervene in adoption proceedings of a child member before  



                                                                       

a superior court.  In J.R.S. we concluded that although ICWA did not explicitly grant  



                                                                                    27  

tribes  a  right  to  intervene  in  adoption  proceedings,                             it  did  create  an  interest  in  



                                                                                                       

"defend[ing] the Act's preference system" that Civil Rule 24(a) was designed to protect,  



          23        See Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991).  



          24        See State ex rel. Merrill v. Ohio Dep't of Natural Res.                              , 955 N.E.2d 935  



(Ohio 2011).  



          25        See SEC v. U.S. Realty & Improvement Co., 310 U.S. 434, 448 (1940)  

                                                                                           

(permitting the SEC to intervene in and appeal bankruptcy proceedings because it is  

                                                                                                                 

"specially charged by various statutes with the protection of the interests of the investing  

                                                                                                                 

public"); Mary R. v. B. & R. Corp. , 196 Cal. Rptr. 871, 875 (Cal. App. 1983) (holding  

                                                       

that  board  had  "standing  [to  collaterally  attack  gag  order]  based  on  its  interest  in  

                         

fulfilling its statutory obligations to supervise and regulate the practice of medicine in  

this state and to investigate allegations of physician misconduct"); Schaghticoke Indians  

of Kent, Conn., Inc. v. Potter, 587 A.2d 139, 142 (Conn. 1991) (holding that state has  

                                                              

standing to appeal an action  initiated by a tribe based on its "statutory obligation to  

                                              

oversee the . . . reservation," which made it "responsible under the statute for damage to  

                                                      

the reservation and misuse of tribal funds . . . [and] thus authorized to appeal").  



          26        690 P.2d 10 (Alaska 1984).  



          27  

                                                                                                      

                    See id. at 15 ("The Act itself does not give a tribe the right to intervene in  

an  adoption  proceeding.");  Indian  Child  Welfare  Act,  25  U.S.C.    1911(c)  (2012)  

(creating  a  right  of  intervention  "[i]n  any  State  court  proceeding  for  the  foster  care  

                       

placement of, or termination of parental rights to, an Indian child," but omitting any  

similar right in adoption proceedings).  



                                                              -16-                                                         6967
  


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

and that the superior court therefore should have permitted the tribe to intervene as of  



        28                                                                                                           29 

right.      Unlike J.R.S. , this inter-parent custody dispute is not covered by ICWA.                                    And  



J.R.S. does not support the conclusion that the tribal council has standing to appeal in this  



case.  It is a case about intervening in an on-going proceeding, rather than appealing.  



The tribal council in this case seeks to extend an inter-parent custody dispute that the  



                                                                                                       

original parties did not seek to continue.  The law of litigant standing, aimed at ensuring  



                                                                                                                             30  

                                               

that the courts do not attempt to "resolve abstract questions or issue advisory opinions," 



encompasses different considerations in these two situations.  



                                  

                              b.       Neither parent appealed.  



                    Myre  chose  not  to  file  an  appeal  of  the  superior  court's  custody  



                                                                                                       

modification  decision,  and  it  appears  that  at  one  point  she  agreed  that  it  would  be  



                                                                                       31  

                                                                                            In considering the tribal  

appropriate for the superior court to enter an interim order. 



                                                            

council's interest in bringing an appeal, we note that recognition of the tribal council's  



                                                                                                                 

standing would prioritize its interest over that of Myre, who elected not to appeal the  



                         

superior court's decision.  Allowing for the tribal council's standing in this appeal could  



lead to a situation where both parents choose to pursue modification in state court and  



          28        J.R.S. , 690 P.2d at 18.  



          29        See John I, 982 P.2d 738, 747 (Alaska 1999).  



          30        Keller   v.  French ,  205  P.3d  299,  302  (Alaska  2009)  (quoting Ruckle  v.  



Anchorage Sch. Dist. , 85 P.3d 1030, 1034 (Alaska 2004)).  



          31        Following her arrest and the State's assumption of protective custody of  



J.W., Myre filed a response to Wheeler's motion for immediate modification of custody  

                                                                             

in the superior court.  Her response "recognize[d] entirely the appropriateness under the  

                                                                                           

circumstances of [the superior court] modifying the interim custody arrangement in this  

                                                                                                    

matter so that [J.W.] can be suitably placed in a home that is best for him, and also  

                                                         

[understood]  that  such  placement  [would]  likely  be  with  his  biological  father."  

(Emphasis in original.)  



                                                             -17-                                                       6967
  


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

are satisfied with the superior court's resolution of their custody modification dispute,  



                                                                                                         32  

                                                                                                             This would  

but the tribe appeals that modification decision on jurisdictional grounds. 



run counter to our statement in John v. Baker that "Native parents who live in Anchorage  

                                                                                              



and do not wish to avail themselves of a distant tribal forum will still be able to resolve  

                                                                                                                

their custody disputes in Anchorage Superior Court."33  



                   We  emphasize  that  neither  party  seeking  custody  of  J.W.  appealed  the  



superior court's decision.  The court system exists to resolve cases or controversies that  



arise  between  parties,  and  its  proper  functioning  requires  careful  attention  to  those  



parties' wishes and actions.  Individuals and organizations may sincerely seek judicial  

                                                                  



acceptance of legal theories, but that sincerity does not expand the courts' role beyond  

                                                       



resolving active cases or controversies at the request of involved parties.  



                   Our decision to dismiss this appeal should not be read as an invitation to  



                                                                       

grant tribal courts anything less than "the respect to which they are entitled as the judicial  



                                                 34  

                                                     That respect continues to inform our analysis.  But  

institutions of sovereign entities."                                                                                    



the respect due to tribal courts does not translate into independent standing to appeal a  

                                                                                                              



superior  court's  inter-parent  child  custody  decision  on  jurisdictional  grounds  when  



neither party has chosen to appeal from the superior court decision. 



                    We conclude that because the parents elected not to appeal the superior  

                                                



court's  decision,  the  tribal  council's  interest  does  not  rise  to  the  level  necessary  to  

                                         



establish standing to appeal the child custody modification order.  



          32       Wheeler  does  not  argue  on  appeal  that  the  superior  court's  grant  of  



permissive intervention to the tribal council was improper, only that the tribal council  

                                                                                                     

lacks  standing  to  appeal.    The  propriety  of  the  superior  court's  grant  of  permissive  

intervention to the tribal council is therefore not before us.   



          33       John I , 982 P.2d at 761.  



          34       Simmonds v. Parks, 329 P.3d 995, 1010-11 (Alaska 2014).  



                                                            -18-                                                      6967
  


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

V.     CONCLUSION  



             We DISMISS the tribal council's appeal for lack of standing.  



                                        -19-                                    6967
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


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

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