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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Central Council of Tlingit and Haida Indian Tribes of Alaska (3/25/2016) sp-7093

State v. Central Council of Tlingit and Haida Indian Tribes of Alaska (3/25/2016) sp-7093

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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                                      



 STATE  OF  ALASKA;  PATRICK  S.                                )  

 GALVIN,  in  his  official  capacity                           )          Supreme  Court  No.  S-14935  

 as  Commissioner  of  the  Alaska                              )  

 Department  of  Revenue;  and  JOHN                            )          Superior  Court  No.   1JU-10-00376  CI  

 MALLONEE,  in  his  official                                   )  

                                             

 capacity as Director of the Alaska                                                            

                                                                )          O P I N I O N  

                                        

 Child Support Services Division,                               )  

                                                                                                                

                                                                )          No. 7093 - March 25, 2016  

                                Appellants,                     )  

                                                                )  

           v.                                                   )  

                                                                )  

                                              

 CENTRAL COUNCIL OF TLINGIT                                     )  

                                                       

AND HAIDA INDIAN TRIBES OF                                      )  

                                                       

ALASKA, on its own behalf and as                                )  

                                              

parens patriae  on behalf of its                                )  

members,                                                        )  

                                                                )  

                                Appellee.                       )  

                                                                )  



                                                                                                               

                                                  

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

                                                                                                  

                      Judicial District, Juneau, Philip M. Pallenberg, Judge.  



                                                                                                      

                      Appearances:               Mary  Ann  Lundquist,   Senior   Assistant  

                                                                                                            

                      Attorney  General,  Fairbanks,  Stacy  K.  Steinberg,  Chief  

                                                                                                                  

                      Assistant  Attorney  General,  Anchorage,  and  Michael  C.  

                      Geraghty, Attorney General, Juneau, for Appellants.  Jessie  

                                                                                                          

                      Archibald, CCTHITA Child Support Unit Attorney, Juneau,  

                                                                                                            

                      and  Holly  Handler  and  Sydney  Tarzwell,  Alaska  Legal  

                                                                                                                 

                      Services   Corporation,   Juneau,   for   Appellee.                               Erin   C.  

                                                                                                     

                      Dougherty  and  Matthew  N.  Newman,  Native  American  

                                                                                                       

                      Rights  Fund,  Anchorage,   for   Amicus  Curiae  National  


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

                                                                                                            

                    Association  of Tribal Child  Support Directors.                             Karen  L.  

                                                                                                 

                    Loeffler, United States Attorney, and Richard L. Pomeroy,  

                                                                                                 

                    Assistant United States Attorney, Anchorage, and Ragu-Jara  

                                                                                             

                    Gregg and Stacy Stoller, Department of Justice, Washington,  

                                                                       

                    D.C., for Amicus Curiae United States.  



                                                                                                          

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

                                 

                    Bolger, Justices.  



                                          

                    FABE, Chief Justice.
  

                                                                                                       

                    WINFREE, Justice, with whom STOWERS, Justice, joins,
  

                                          

                    concurring in part.
  



I.        INTRODUCTION  



                                                                                                                               

                    A  federally  recognized  Alaska  Native  tribe  has  adopted  a  process  for  



                                                                                                                               

adjudicating the child support obligations of parents whose children are members of the  



                                                                                                                        

tribe or are eligible for membership, and it operates a federally funded child support  



                                                                                                                                

enforcement agency.  The Tribe sued the State and won a declaratory judgment that its  



                                                                                                                                

tribal court system has subject matter jurisdiction over child support matters and an  



                                                                                                                            

injunction requiring the State's child support enforcement agency to recognize the tribal  



                                                                                                                                     

courts' child support orders in the same way it recognizes such orders from other states.  



                                                                                                                               

Because we agree that tribal courts have inherent subject matter jurisdiction to decide the  



                                                                                                                               

child support obligations owed to children who are tribal members or are eligible for  



                                                                                                                

membership, and that state law thus requires the State's child support enforcement  



                                                                                                                

agency to recognize and enforce a tribal court's child support orders, we affirm.  



                                                               -2-                                                         7093
  


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

II.          FACTS AND PROCEEDINGS          



             A.            The Uniform Interstate Family Support Act                                               

                                                                                                                                        1  governs Alaska's  

                           The Uniform Interstate Family Support Act (UIFSA)                                                                                 



enforcement of child support orders issued by tribunals other than Alaska's state courts.  

                                                                                                                                                                                

Federal child support enforcement funds are conditioned on a state's passage of UIFSA,2  

                                                                                                                                                              



                                                                                                                                                    3  

                                                                                                                              

and as a result every state in the country has enacted identical legislation. 



              1            AS 25.25.101                 et seq.   



             2  

                                                                                                                                                                     

                           42 U.S.C.  666(f) (2012) (to qualify for reimbursement, "each State must  

                                                                                                            

have in effect the Uniform Interstate Family Support Act").  



             3             See  ALA. C              ODE      30-3A-101   et   seq.   (2014);   ARIZ. R                                      EV. S      TAT. A         NN .  

                                    

                                                       RK. C      ODE  ANN .  9-17-101                       et seq.       (2014); C          AL. F      AM. C       ODE  

 25-1201 et seq. (2014); A 

 4900         et seq.       (West 2014); C                  OLO. R       EV. S      TAT.  14-5-101                  et seq. (2014); CONN. G                          EN.  

   TAT.  46b-212                  et seq.       (2014); D            EL. C     ODE  ANN . tit. 13,  6-101                          et seq.       (2014); D.C.  

S             

   ODE  46-301.01 et seq. (2014); FLA. S                                        TAT.  88.0011                 et seq.       (2014); G           A. C    ODE  ANN .  

C                                                                    

                                                            AW. R        EV. S     TAT.  576b-101                   et seq.        (2014); I  DAHO  CODE  

 19-11-100 et seq. (2014); H 

ANN .  7-1001                 et seq. (2014); 750 I  LL. C                        OMP. S        TAT. 22/101              et seq.       (2014); I  ND . C             ODE  

 31-18-1-1              et seq.        (2014); I   OWA   CODE    252k.101                               et seq.  (2014); K                  AN. S      TAT. A        NN .  

                                                            Y. R    EV. S      TAT. A       NN .  407.5101                  et seq.       (West 2014); L                 A.  

 23-36,101 et seq. (2014); K 

CHILD. C           ODE  ANN . art 1301.1                      et seq.       (2014); M            E. R    EV. S      TAT. tit. 19-A,  2801                       et seq.   

(2014);  MD.   CODE   ANN ., F                             AM.   LAW      10-301   et   seq.   (2014);   MASS.   GEN.   LAWS  

ch. 209D,  1-101                    et seq.       (2014); M            ICH. C      OMP. L        AWS   552.1101                  et seq.       (2014); M            INN.  

   TAT.  518C.101 et seq. (2014); MISS. C                                         ODE  ANN .  93-25-1                      et seq.      (2014); M            O. R    EV.  

S                                                                   

STAT.  454.1500                     et seq.        (2014); M            ONT. C        ODE  ANN .  40-5-101                         et seq.       (2014); N            EB.  

REV. S        TAT.  42-701  et seq.  (2014); NEV. R                                     EV. S     TAT.  130.0902                   et seq. (2014); N.H.  

REV. S        TAT. A       NN .  546-B:1                et seq.       (2014); N.J. S              TAT. A        NN .  2a:4-30.65                  et seq.       (West  

2014); N.M. S                 TAT. A        NN .  40-6a-100                    et seq.        (2014); N.Y. F                AM. C        T. A    CT    580-101   

et seq.      (McKinney 2014); N.C.G                              EN.S      TAT.  52c-1-100                   et seq.      (2014); N.D. C                ENT.C        ODE  

 14-12.2-01               et seq.        (2013); O            HIO   REV. C           ODE  ANN .  3115.01                       et seq.        (2014); OKLA.  

   TAT. tit. 43,  601-100 et seq. (2014); OR. R                                          EV. S     TAT.  110.303                 et seq.       (2014); 23 P             A.  

S                                                                              

CONS. S          TAT.  7101             et seq.       (2014); R.I. G               EN. L      AWS   15-23.1-100                      et seq.       (2014); S.C.   

    ODE   ANN .    63-17-2900  et  seq.  (2014);  S.D.                                                      CODIFIED    LAWS                          25-9B-101  

C                                                                                               

et seq.       (2014); T           ENN. C        ODE  ANN .  36-5-2001                          et seq.  (2014); T                 EX. F     AM. C        ODE  ANN .  

                                                                                                                                                   (continued...)  



                                                                                    -3-                                                                             7093
  


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

                      UIFSA allows parents to register and enforce child support orders issued           



                                                4                                                                                         5  

by the tribunal of another state                                                                                                              

                                                  in the same manner as orders issued by Alaska's courts. 



It also allows parties to send the documents required to register another state's support  

                                                                                                                                



order directly to the Alaska Child Support Services Division (CSSD), the arm of state  

                                                                                                                                     

government charged with enforcing child support orders.6                                       CSSD enforces these orders  

                                                                                                                                   

through administrative procedures "without initially seeking to register  the order."7  

                                                                                                                                              



UIFSA also includes procedures for direct enforcement of orders from other tribunals.  

                                                                                                                                              



Income withholding orders can be sent directly to obligors' employers in Alaska without  

                                                                                                                                

first registering the orders with the state courts or CSSD.8                                   When an employer receives  

                                                                                                                               



a facially regular order from another state, the employer must comply and withhold the  

                                                                                                                                        

income as directed, just as if the order had come from an Alaska court.9  

                                                                                                                     



                      Whether the out-of-state child support order is registered with Alaska's  

                                                                                                                              



courts, enforced by CSSD without court involvement, or sent directly to an employer,  



           3(...continued)  



   159.001   et  seq.   (West   2014);  UTAH   CODE   ANN .    78b-14-101   et  seq.   (LexisNexis  

2014);   VT.  STAT.  ANN .  tit.  15B,    101  et  seq.  (2014);  VA.  CODE  ANN .    20-88.32  et  seq.  

(2014);   WASH.   REV.   CODE      26.21a.005   et   seq.   (2014);   W.   VA.   CODE      48-16-101  

                             IS.   STAT.      769.101   et   seq.   (2014);   WYO.   STAT.   ANN .  20-4-139  

et   seq.   (2014); W 

et  seq.  (2014).  



           4          AS  25.25.601-.602.  



           5          AS  25.25.603(b).  



           6          See  AS  25.27.080.  



           7          AS  25.25.507(b).  



           8          See  AS  25.25.501.  



           9          See  AS  25.25.502(b).  



                                                                    -4-                                                             7093
  


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

an obligor can contest its validity or enforcement.                                                              10  The party contesting an order has   



the burden of proving one of several available defenses, including that "the issuing                                                                                               



tribunal lacked personal jurisdiction over the contesting party," and that "there is a                                                                                                           

defense under the law of this state to the remedy sought."                                                                        11  



                              UIFSA applies to support orders "issued in another state."12  As originally  

                                                                                                                                                                              



enacted in 1995, Alaska's version of UIFSA differed from the model version by not  

                                                                                                                                                                                            

including  Indian  tribes  within  its  definition  of  "state."13                                                                         In  2008  the  State  twice  

                                                                                                                                                                                       



requested that the federal Department of Health and Human Services exempt it from the  

                                                                                                                                                                                             



requirement that states enact UIFSA exactly as the model legislation was written.  Both  

                                                                                                                                                                                         



requests were denied.  In 2009 the State legislature amended AS 25.25.101 to include  

                                                                                                                                                                                   

Indian tribes in its definition of "state."14  As Alaska's version of UIFSA now reads, "the  

                                                                                                                                                                                           

term 'state' includes an Indian nation or tribe."15  

                                                                                             



                              The law amending the statute included the legislature's view that "UIFSA  

                                                                                                                                                                                 



does not determine the authority of an Indian tribe to enter, modify, or enforce a child  

                                                                                                         



               10             AS  25.25.506   (allowing an   obligor  to   contest   directly   enforced   orders);  



AS  25.25.606  (procedure  to  contest  registered  orders).  



               11             AS  25.25.607(a)(1),  (5).  



               12             See  AS  25.25.507,  .601;  see  also  AS  25.25.101(14)  ("  '[I]ssuing  tribunal'  



means  the  tribunal  of  a  state  or  foreign  country  that  issues  a  support  order  or  a  judgment  

determining  parentage  of  a  child.").   



               13             See ch. 57,  4, SLA 1995 (omitting Indian tribes).  

                                                                                                                                  



               14             Ch. 45,  3, SLA 2009.  

                                                                       



               15             AS 25.25.101(26).  

                                       



                                                                                               -5-                                                                                       7093
  


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

                       16  

support  order."           It  went  on  to  state  that   



                    the  legislative  intent  is  



                    (1)       to  remain  neutral  on  the  issue of the underlying child  

                    support   jurisdiction,   if   any,   for   the   entities   listed   in   the  

                    amended  definition  of  "state";  



                    (2)       not  to  expand  or  restrict  the  child  support  jurisdiction,  

                    if  any,  of  the  listed  "state"  entities  in  the  amended  definition;  

                    and  



                                                                                                 

                    (3)       not to assume or express any opinion about whether  

                                                                                                          

                    those  entities  have  child  support jurisdiction  in  fact  or  in  

                    law.[17]  



          B.	       The Central Council Of Tlingit And Haida Indian Tribes Of Alaska's  

                                                                                                                   

                    Tribal Child Support Unit  

                                                       



                    The Central Council of Tlingit and Haida Indian Tribes of Alaska ("Central  

                                                                                                                   



Council"  or  "the  Tribe")  is  a  federally  recognized  Indian  tribe  based  in  Southeast  

                                                                                                                  

Alaska.18  Central Council has established a tribal court system asserting jurisdiction over  

                                                                                                                           

civil, criminal, probate,  and juvenile  law matters.19                        Central Council also has  a child  

                                                                                                                         

                                                               



support enforcement program known as the Tribal Child Support Unit.  The Unit was  

                                                                                                                           



first initiated in 2004, and it received full federal funding as Alaska's first Tribal IV-D  

                                                                                                                         



program in 2007.  

                  



          16        Ch.  45,     1,  SLA  2009.  



          17        Id.  



          18        Indian   Entities   Recognized   and   Eligible   to   Receive   Services   From   the  



United  States  Bureau  of  Indian  Affairs,  79  Fed.  Reg.  4748-02,  4752  (Jan.  29,  2014).  



          19        Central Council of Tlingit &  Haida Indian Tribes of Alaska Tribal Code,  



  06.01.020.  



                                                              -6-	                                                       7093
  


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

                   Tribal   IV-D   programs   are   federally  funded   child   support   enforcement  



              20  

programs.         The  federal  government  reimburses  Tribal  IV-D  programs  that  comply  with  



federal   statutory  and  regulatory  requirements   for  much   of  the   cost   of   enforcing   child  



support  orders,  just as  it  does  for  states'  child  support  enforcement  programs.  One  of  



these requirements is that any  potential Tribal IV-D program describe  "the population  



subject  to  the  jurisdiction  of  the  Tribal  court  or  administrative  agency  for  child  support  

enforcement  purposes."21  

                                     Another  is  that  each  Tribal  IV-D  program  "[e]stablish  one  set  



of  child  support  guidelines  by  law  or action of  the  tribunal  for  setting  and  modifying  

child  support  obligation  amounts."22  



                   Central   Council's   Tribal   IV-D   plan   for   the   Tribal  Child   Support   Unit  



grounds   the  jurisdiction   of   the   tribal   court   in   the   Central   Council   Constitution   and  



bylaws.     Those   bylaws   first   include   the   following   statement   of  jurisdiction:     "The  



jurisdiction of  the  Tribal  Court  shall  include  all  territory  described  in  Article   1  of  the  



 [Central  Council]  Constitution  and  it  shall  be  over  all  persons  therein,  and  any  enrolled  

                                                                                                     23  The bylaws  

Tribal  member  citizen  and  their  descendants  wherever  they  are  located."                                



          20       See  Tribal  Child  Support  Enforcement  Programs,  69  Fed.  Reg.  16,638-82  



(Mar.  30,  2004)  (codified  at  45  C.F.R.  pts.  286,  302,  309,  and  310).   The  designation  

"IV-D"  is  a  reference  to  Title  IV-D  of  the   Social   Security Act,  codified  at  42  U.S.C.  

     651-669b    (2012),    the    federal    law    that    governs    the    federal    government's  

reimbursement  of  child  support  enforcement  costs.  



          21       45 C.F.R.  309.70 (2015).  

                                                



          22       45 C.F.R.  309.105(a)(1).  

                                     



          23       Central Council of Tlingit & Haida Indian Tribes of Alaska Tribal Code,  



  06.01.020(A).  The territory described in Article I of the tribal constitution includes  

                                                                                             

lands within the Tribe's dependent communities and tribal trust lands.  CONST. OF THE  

                                    

CENTRAL  COUNCIL OF  TLINGIT  &  HAIDA  INDIAN  TRIBES OF  ALASKA  art.  I,     1.  



                                                           -7-                                                    7093
  


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

                                                                                                                                                                                                                                                                                                                                                                                        24  

further include a list of actions subjecting individuals to tribal jurisdiction.                                                                                                                                                                                                                                                                                                                  It is under             



this provision, rather than the provision for territorial jurisdiction, that Central Council                                                                                                                                                                                                                                                                                                                   



asserts jurisdiction here.                                                                                                   In its Tribal IV-D plan, Central Council explains that "[t]here                                                                                                                                                                                                                    



are a number of criteria that the Court can rely on to exert its jurisdiction, which include                                                                                                                                                                                                                                                                                                                      



 sexual   conduct   which   results   in   the   paternity   of   a   [Central  Council]   child   and   the  



corresponding obligation to provide for the child."                                                                                                                                                                           



                                                                    Central Council's Tribal IV-D plan for the Tribal Child Support Unit also                                                                                                                                                                                                                                                                                      



describes the guidelines the tribal court uses to                                                                                                                                                                                                             set child                                         support obligations.                                                                                          The  



guidelines enact a percentage-based formula that establishes the amount of an obligor's                                                                                                                                                                                                                                                                                                                   



child   support   obligation   based   on   adjusted   income   and   number  of   children.     The  



guidelines also foresee certain deviations for low-income obligors, for in-kind support,                                                                                                                                                                                                                                                                                                                      



and for other causes.                                               



                                                                     Since the Tribal Child Support Unit began its operations in 2007, Central                                                                                                                                                                                                                                                                    



Council's tribal courts have heard and decided more than 100 child support cases.                                                                                                                                                                                                                                                                                                                                                        In  



each case the child was a member of the Tribe, eligible for membership, or part of a                                                                                                                                                                                                                                                                                                                                                             



family that had received Temporary Assistance to Needy Families benefits from Central                                                                                                                                                                                                                                                                                                                              



Council, resulting in assignment of the right to child support to the Tribe.                                                                                                                                                                                                                                                                                                                                Central  



Council's   courts   have   enforced   child   support   obligations   over   the   jurisdictional  



objections of obligor parents who are neither members of the Tribe nor eligible for                                                                                                                                                                                                                                                                                                                                                    



membership.  



                                                                    TheTribal                                             ChildSupport Unithas                                                                                                worked with itsstatecounterpart,                                                                                                                                       CSSD,  



 since 2007.   CSSD has referred more than 700 existing child support cases to the Unit                                



for enforcement. CSSD has also enforced cases that the Unit referred to it, so long as the                                                                                                                                                                                                                                                                                                                                              



original child support order was issued by a state court rather than an Alaska tribal court.                                                                                                                                                                                                                                                                                                                               



                                  24  

                                                                                                   

                                                                   Id. at  06.01.030.  



                                                                                                                                                                                                                      -8-                                                                                                                                                                                                                               7093  


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

 CSSD has not enforced any child support orders that Central Council's tribal courts                                                                                                                                                                                



 originally issued.  Only a state can garnish IRS tax refunds of obligor parents, and the                                                                                                                                                                                      



 Unit   has   coordinated   with   the   State   of   Washington   to   do   so.     But   certain   other  



 enforcement                                     mechanisms,                                       including                             garnishing                                an             obligor                        parent's                          Alaska  



 unemployment   insurance   benefits   or  Permanent   Fund   Dividend,   require   CSSD's  



 cooperation and thus have been unavailable for enforcement of any child support orders                                                                                                                                                                              



 issued by Central Council's tribal courts.                                                                     



                       C.                   Proceedings Below   



                                            In January 2010 Central Council filed a complaint against the State seeking                                                                                                                                          



 a declaration that it possesses inherent jurisdiction to decide child support cases for                                                                                                                                                                                       



 member and member-eligible children and an injunction directing the State to enforce  



 child   support   orders  issued  by   its   tribal   courts.     Both   parties   moved   for   summary  



judgment.  



                                            The superior court granted summary judgment for the Tribe. The superior                                                                                                                                            



 court   determined   that  "the   issues   of   child   custody   and   child   support   are   closely  



 intertwined."   It grounded this connection between custody and support in two sources                                                                                                                                                                          



 of Alaska law:                                   first,  McCaffery v. Green                                                          , a 1997 case in which we held that an Alaska                                                                                



 trial court with jurisdiction to modify an out-of-state custody order also had jurisdiction                                                                                                                                                        

                                                                                                    25 and second, the provisions of Alaska Civil Rule 90.3,  

 to modify support obligations;                                                                                                                                                                             



 which the superior court interpreted to "require [a trial] court to consider child support  

                                                                                                                                                                                                                                                                



 any time it makes a custody decision."   The superior court also noted that rejecting  

                                                                                                                                                                                                                                                            



 Central Council's assertion of jurisdiction to set child support orders "would provide a  

                                                                                                                                                                                                                                                                                      



 substantial deterrent for parents to bring custody disputes to tribal courts, since tribal  

                                                                                                                                                                                                                                                                        



 courts could not decide all of the issues in the case."  

                                                                                                                                                       



                      25  

                                                                                                                                                  

                                            See 931 P.2d 407, 414 (Alaska 1997).  



                                                                                                                                         -9-                                                                                                                                           7093  


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

                        In light of the connection between child custody and child support, and                                                    



relying   on   our   holding   in   John   v.   Baker   (John   I)  that   Alaska   tribes   have   inherent  

                                                                                                     26  the superior court ruled that  

 sovereign jurisdiction to adjudicate child custody matters,                                                                                       



 Central Council's jurisdiction extended to child support adjudication as well:  

                                                                                                                                



                                    The  determination  and  enforcement  of  the  duty  of  

                                                                                                                    

                        parents to support a child who happens to be a tribal member  

                                                                                                                    

                        is no less a part of the tribe's internal domestic relations than  

                                                                                                                          

                        the decision as to which parent the child will live with, which  

                                                                                                                       

                        school the child will attend, or any of the other important  

                                                                                                                

                        decisions that custody courts make every day.  Ensuring that  

                                                                                                                            

                        tribal children are supported by their noncustodial parents  

                                                                                                                     

                        may be the same thing as ensuring that those children are fed,  

                                                                                                                           

                        clothed, and sheltered.  The future of a tribe - like that of  

                                                                                                                              

                        any society - requires no less.  

                                                                        



                        The superior court entered an order "declaring that the Tribe's inherent  

                                                                                                                                          



rights of self-governance include subject matter jurisdiction to adjudicate child support  

                                                                                                                                            



 for children who are members of the Tribe or eligible for Tribal membership." The order  

                                                                                                                                                



 also required the State to treat Central Council's tribal courts and the Tribal Child  

                                                                                                                                               



 Support Unit as it would any other state's courts and child support enforcement agency  

                                                                                                                                             



under UIFSA and the regulations connected to Title IV-D.  

                                                                                                         



                        The  superior  court's  order  on  summary  judgment  noted  that  Central  

                                                                                                                                           



 Council's action for a declaratory judgment and injunctive relief did "not require the  

                                                                                                                                                    



 [superior] court to decide the issue of personal jurisdiction, which must be decided on  

                                                                                                                       



 a case by case basis."  In some cases, the superior court speculated, "the exercise of  

                                                                                                                                                     



jurisdiction by the tribal court may well violate due process."  Ultimately, both parties  

                                                                                                                                    



            26  

                                                                                      

                        See 982 P.2d 738, 748-49 (Alaska 1999).  



                                                                         -10-                                                                   7093  


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

agreed "that the [superior] court should leave questions of personal jurisdiction for                                                                                 



decision in future cases."           



                           The State appeals.     



III.         STANDARD OF REVIEW                    



                                                                                                                                 27  

                           We review the scope of tribal jurisdiction de novo.                                                                                            

                                                                                                                                      We also "review a  



                                                                                                                                                       28  

                                                                                                                                                            "Under  

grant of summary judgment de novo, applying our independent judgment." 



                                                                                                                                                        

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



                                           29  

                                         

reason, and policy.' " 



IV.          DISCUSSION  



                          UIFSArequires that Alaskacourtsregisterand CSSDenforcechild support  

                                                                                                                                                              

orders issued by the tribunal of "an Indian nation or tribe."30                                                            Central Council does not  

                                                                                                                                                                      



argue that either Title IV-D of the Social Security Act or UIFSA is the source of its  

                                                                                                                                                                        



tribunals' authority to decide child support matters. Instead, the legal question presented  

                                                                                                                                                          



in thisappealiswhether Central Council's tribal courts haveinherent sovereignauthority  

                                                                                                                                                           



to exercise subject matter jurisdiction over child support matters and thus are "authorized  

                                                                                                                                                      



tribunals" for purposes of UIFSA.  

                                                     



             27            See  State  v.  Native   Village  of  Tanana,  249  P.3d  734,  737  (Alaska  2011).  



             28           Estate  of  Kim  ex  rel.  Alexander  v.  Coxe,  295  P.3d  380,  385  (Alaska  2013).  



             29           Native Village  of  Tanana,  249  P.3d  at  737  (quoting  Glamann  v.  Kirk,  29  



P.3d  255,  259  (Alaska  2001)).  



             30            AS  25.25.101(14),  (26).   



                                                                                  -11-                                                                            7093
  


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

           A.	        Subject Matter Jurisdiction Derived From Inherent, Non-Territorial                           

                      Sovereignty Has Two Dimensions.        

                      The jurisdictional reach of tribal courts is a question of federal law.                                       31  As  



                                                                                                                                  

the  United  States  Supreme  Court  has  long  recognized,  "Indian  tribes  are  unique  



                                                                                                                                       

aggregations possessing attributes of sovereignty over both their members and their  



                32  

territory."                                                                                                                           

                     In most states there is a "traditional reservation-based structure of tribal  



        33  

                                                                                                                                           

life,"      and many tribes consequently look to both tribal membership and tribal land as  



                                                                                          34  

                                                                                                                                    

their sources of sovereignty and tribal court jurisdiction.                                   But a 1971 federal law known  



                                                                                                                                            

as the Alaska Native Claims Settlement Act (ANCSA) extinguished all Native claims to  



                                                                                                                      35  

                                                                                                                                   

land in Alaska and revoked all but one Indian reservation in the state.                                                    The United  



                                                                                                                                           

States Supreme Court has held that the former reservation lands ANCSA transferred to  



           31         See Plains Commerce Bank v.  Long Family Land & Cattle Co., 554 U.S.  



316,  324  (2008).  



           32         United  States  v.  Mazurie,  419  U.S.  544,  557  (1975).  



           33         John  I,  982  P.2d  738,  754  (Alaska   1999).  



           34         See,  e.g.,  CONST.  OF  THE  BLUE  LAKE  RANCHERIA  art.  II,    1  ("Territory  and  



Jurisdiction.   The  jurisdiction  of  the  tribe,   .   .   .  and  its  tribal  courts  shall  extend to the  

following:   (a)  All  lands,  water  and  other  resources  within  the  exterior  boundaries  of  the  

Blue  Lake  Rancheria,  .  .  .  (e)  All  tribal  members,  wherever  located,  to  the  fullest  extent  

permitted  by  applicable  Federal  law.");  CONST.  OF  THE  LITTLE  RIVER  BAND  OF  OTTAWA  

art.  I,    2  ("Jurisdiction  Distinguished  From  Territory.   The  Tribe's  jurisdiction  over  its  

members   and   territory   shall   be   exercised   to   the   fullest   extent   consistent   with   this  

Constitution,   the   sovereign   powers   of   the   Tribe,   and   federal   law.");   CONST.   OF   THE  

SIPAYIK  MEMBERS  OF  THE  PASSAMAQUODDY  TRIBE  art.  II,    1  ("Scope.  The  authority  of  

the  government  established  by  this  Constitution  shall  extend  over  all  Sipayik  members  

of  the  Passamaquoddy   Tribe   and all persons,   subjects,  territory   and  property  now   or  

hereafter   included   within   the   jurisdiction   of   the   Pleasant   Point   Reservation   of   the  

Passamaquoddy  Tribe  .  .  .  .").   



           35         See 43 U.S.C.  1603, 1618(a) (2012).  

                                                                                         



                                                                    -12-	                                                             7093
  


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

Native-owned,   state-chartered   regional   and   village   corporations   in   exchange   for  



 extinguishing those claims are not "Indian country" under the federal statute that defines                                                     

                  36     As  a  result  of  this  history,  we  have  had  to  examine  the  inherent,  

the   term.                                                                                                                                 



non-territorial sovereignty of Indian tribes, a question of federal law that other "courts  

                                                                                                        

have not had occasion to tease apart."37  

                                                         



                         Our  decisions  analyzing  the  inherent,  non-territorial  subject  matter  

                                                                                                                                                



jurisdiction of Alaska tribal courts have implicitly recognized two separate dimensions  

                                                                                                                                         



 of  this  jurisdiction.                    Both  dimensions  reflect  our  understanding  that  inherent,  

                                                                                                                                            



non-territorial  subject  matter  jurisdiction  derives  from  "a  tribe's  ability  to  retain  

                                                                                                                                                  

 fundamental powers of self-governance."38                                         The first dimension of this jurisdiction  

                                                                                                                                        



relates to the character of the legal question that the tribal court seeks to decide, while  

                                                                                                                                     



the second relates to the categories of individuals and families who might properly be  

                                                                                                                                                         



brought before the tribal court.  

                                              



                        Although our earlier decisions have not always clarified that inherent,  

                                                                                                                                            



non-territorial subject matter jurisdiction has the two dimensions we now expressly  

                                                                                                                                           



recognize, they have addressed both the character of the legal questions that tribal courts  

                                                                                                                                                  



have adjudicative authority to decide and the populations subject to that authority.  In  

                                                                                                                                                         



 doing so, our decisions have aligned with the definition of subject matter jurisdiction  

                                                                                                                                        



            36          See Alaska v. Native Village of Venetie Tribal Gov't                                        , 522 U.S. 520, 532-34         



 (1998) (interpreting 18 U.S.C.  1151).                    



            37          John I, 982 P.2d at 754; cf. Kaltag Tribal Council v. Jackson, 344 F. App'x  

                                                                                                                                                  

 324, 325 (9th Cir. 2009) ("Reservation status is not a requirement of jurisdiction because  

                                                                                                                                               

 '[a] Tribe's authority over its reservation or Indian country is incidental to its authority  

                                                                                                                                             

 over its members.' " (quoting Native Village of Venetie I.R.A. Council v. Alaska, 944  

                                                                                                                                                      

F.2d 548, 559 n.12 (9th Cir. 1991))).  

                                                     



            38          John I, 982 P.2d at 758.  

                                                             



                                                                           -13-                                                                    7093
  


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

advanced by a leading treatise on Indian law:                                           "the ability of a court to hear a particular                   



kind of case, either because it involves a particular subject matter or because it is brought                                                           



                                                                                                                                            39  

by a particular type of plaintiff or against a particular type of defendant."                                                                    



                                                                                                                                                                  

                          Our foundational decision for the analysis of tribal courts' exercise of  



                                                                                                                                                                   40  

                                                                                                                                                                        

subject matter jurisdiction on the basis of inherent, non-territorial sovereignty is John I. 



That case arose when a father who was a member of Northway Village filed a custody  

                                                                                                                                                        



petition in the Northway tribal court and then, after the tribal court issued its custody  

                                                                                                                                                        

order, filed an identical suit in state superior court.41  Although the children's mother was  

                                                                                                                                                                



not a member of Northway Village she "consented to Northway's jurisdiction" during  

                                                                                                         



the first suit and then moved to dismiss the superior court suit on the basis of the tribal  

                                                                                                                                                             

court's order.42  

               



                          In John I we examined the first dimension of tribal courts' inherent, non- 

                                                                                                                                                              



territorial subject matter jurisdiction:  the character of the legal question at issue.  We  

                                                                                                                                                                



surveyed federaldecisions andrecognizedthat "in determining whether tribesretain their  

                                                                                                                                                               



sovereign powers, the United States Supreme Court looks to the character of the power  

                                                                                                                                                           

that the tribe seeks to exercise, not merely the location of events."43                                                                We focused our  

                                                                                                                                               



analysis on whether adjudicating child custody matters - the power that the Northway  

                                                                                                                                                    



Village tribal court sought to exercise in John I - was the type of legal question that  

                                                                                                                                                               



falls   within   tribal   courts'   membership-based   subject   matter   jurisdiction.                                                                         We  

                                                                                                                                                              



             39           COHEN'S  HANDBOOK  OF  FEDERAL  INDIAN  LAW    7.01,  at  597  (Nell  Jessup  



Newton  ed.,  2012).  



             40           982  P.2d  738.  



             41          Id.  at  743.  



             42          Id.  



             43          Id.  at  752.  



                                                                               -14-                                                                          7093
  


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

                                                                                                    44  

characterized child custody as an "internal domestic matter[]"                                         that "lies at the core of           



                      45  

 sovereignty."                                                                                                                           

                           Based on our analysis of the rights at issue, we held "that the type of  



                                                                                                                                           

dispute before us today - an action for determination of custody of the children of a  



member of Northway Village - falls squarely within Northway's sovereign power to  



                                                                        46  

                                                       

regulate the internal affairs of its members." 



                      We next turned to the second dimension of inherent, non-territorial subject  

                                                                                                                                 



matter jurisdiction:   the categories of litigants whose disputes the tribal courts have  

                                                                                                                                     



authority  to  decide.                We  noted  that  "[b]ecause  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."47   We explicitly  

                                                                                                                              



recognized that the mother in John I was "not a member of Northway Village," but our  

                                                                                                                                       



remand order only directed the superior court to determine the children's eligibility for  

                                                                                                                                        

tribal membership.48  

           



                      A later case more distinctly separated the two dimensions of inherent,  

                                                                                                                              



non-territorial  sovereignty  by  deciding  only  one  of  the  dimensions  and  explicitly  

                                                                                                                            



declining  to  reach  the  other.                   In  State  v.  Native  Village  of  Tanana  a  tribe  sought  

                                                                                                                                 



declaratory and injunctive relief related to its sovereign authority to initiate child custody  

                                                                                                                                



           44         Id.  at  754.  



           45         Id.  at  758.  



           46         Id.  at  759.  



           47         Id.  



           48         Id.   While  the  mother  had  consented  to  tribal  jurisdiction,  id.  at  743,  we  



emphasized  that  the  key  inquiry  was  the  children's  membership  or  membership-eligible  

 status,  id.  at  759.  



                                                                   -15-                                                             7093
  


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

                                                                                                                        49                                        50  

proceedings  as   the   Indian   Child   Welfare   Act   (ICWA)                                                              defines   the   term.                       After  



 analyzing our own cases, precedent from federal courts, and congressional actions, we                                                                                         



 concluded that tribes do have inherent sovereign jurisdiction and authority to initiate                                                                               

 ICWA-defined child custody proceedings.                                                 51  



                            Although we recognized this jurisdiction, we concluded that the record  

                                                                                                                                                                        



 developed at trial did not contain "sufficient facts to make determinations about specific  

                                                                                                                                                                      



 limitations               on       inherent              tribal         jurisdiction                over         ICWA-defined                        child          custody  

                                                                                                                                                                  

proceedings."52  The reach of the jurisdiction would depend on, among other things, "the  

                                                                                                                                                                             

proper exercise of subject matter and personal jurisdiction."53  Among the "many issues"  

                                                                                                                                                                       



 left explicitly undecided were "the extent of tribal jurisdiction over non-member parents  

                                                                                                                                                                       



 of Indian children" and "the extent of tribal jurisdiction over Indian children or member  

                                                                                                                                                                     

parents who have limited or no contact with the tribe."54  

                                                                                                      



                            Thus, our decision in Tanana analyzed the first dimension of the subject  

                                                                                                                                                                       



matter inquiry but not the second.  By acknowledging that questions of subject matter  

                                                                                                                                                                        



jurisdiction remained unanswered even after holding that "tribes are not necessarily  

                                                                                                                                                              



precluded  from  exercising  inherent  sovereign  jurisdiction  to  initiate  'child  custody  

                                                                                                                                                                    



              49            25 U.S.C.  1901                      et seq.       (2012).  



              50            249 P.3d 734, 736 (Alaska 2011).                          



              51            See id. at 751.  

                                                 



              52            Id.  



              53            Id.  at 752 (emphasis added).                



              54            Id.  



                                                                                       -16-                                                                                7093
  


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

                                                                                         55  

proceedings' as ICWA defines that term,"                                                     we recognized that there are more facets of                                            



subject matter jurisdiction than just the character of the legal question at issue.                                                                                            The  



categorical analysis of "the extent of tribal court jurisdiction over non-member parents                                                                                 



of Indian children" was not necessarily reserved for a case-by-case determination, but     

                                                                                                                            56   A complete description of  

it could not be decided on the record on appeal in that case.                                                                                                                       



the inherent, non-territorial subject matter jurisdiction of tribal courts consists of both the  

                                                                                                                                                                                  



types of legal questions those courts can properly hear and the categories of parties  

                                                                                                                                                                          



whose legal disputes those courts can properly resolve.  

                                                                                                                       



              B.	           Adjudicating  Child  Support  Is  Within  Tribal  Courts'  Inherent,  

                                                                                                                                                                  

                            Non-Territorial Subject Matter Jurisdiction.  

                                                                                                      



                            The superior court concluded that "[t]he determination and enforcement of  

                                                                                                                                                                                    



the duty of parents to support a child" is an integral "part of the tribe's internal domestic  

                                                                                                                                                                     



relations," and is thus within Central Council's courts' inherent, non-territorial subject  

                                                                                                                                                                         

matter jurisdiction.57  

                                                                                                                                                                        

                                                We agree, and we hold that the adjudication of child support  



              55            Id.  at  736.  



              56            Id.  at  752.  



              57            The  superior  court's  order  on  summary  judgment  also  examined  the  extent  



to  which  "the  issues  of  child  custody  and  child  support  are  closely  intertwined"  and  the  

potential  for  "procedural  manipulation"  if  tribal  courts  have  jurisdiction  over  one  but  not  

the  other.   This  method  of  analyzing  Central  Council's  inherent,  non-territorial  subject  

matter  jurisdiction  is  inconsistent  with  the  United  States  Supreme  Court's  statement  that  

the  sovereign  authority  of  Indian  tribes  "does  not  vary  depending  on  the  desirability  of  

a  particular  regulation."   Plains  Commerce  Bank  v.  Long  Family  Land  & Cattle  Co.,  554  

U.S.   316,   340   (2008).  Tribal   court  jurisdiction   over   child   support   matters   must   be  

analyzed  on  its  own  merits  rather  than  as  an  extension  of  the  recognized  jurisdiction  over  

child  custody  matters.   See  also  John  v.  Baker  (John  III),  125  P.3d  323,  326-27  (Alaska  

2005)  ("Given  the  plain  language  of  John  I  and  John  II,  it  is  clear  that  we  believed  that  

the  custody  and  support  matters  were  separate  and  that  the  transfer  of  the  former  to  the  

                                                                                                                                                            (continued...)  



                                                                                        -17-	                                                                                7093
  


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

obligations is a component of a tribe's inherent power "to regulate domestic relations                                        

among members."               58  



                      We have held that tribes' powers of internal self-governance include the  

                                                                                                                                        

                                                                                                         59 the power to accept  

power to determine the custody of children of divorcing parents,                                                              

                                                         

transfer jurisdiction of ICWA-defined custody cases from state courts,60  and the power  

                                                                                                                                  

to initiate child protection cases.61                     In each of the cases in which we have recognized  

                                                                                                                           

these  powers,  we  discussed  a  federal  statute  -  ICWA62   -  which  is  not  directly  

                                                                                                                               



applicable to the question of child support now before us.  Even in John I , an inter- 

                                                                                                                 

parental custody dispute to which ICWA did not strictly apply,63 we examined the statute  

                                                                                                                                  

as relevant evidence of Congress's intent.64  

                                                                        



                      The United States Supreme Court has described ICWA as a reaction to  

                                                                                                                                         



"abusive child welfare practices that resulted in the separation of large numbers of Indian  

                                                                                                                                  



children fromtheir families and tribes through adoption or foster care placement, usually  

                                                                                                                                 



           57(...continued)  



tribal  court  did  not  entail  the  transfer  of  the  latter."  (first  citing  John  I,  982 P.2d 738  

(Alaska   1999);  then  citing  John  v.  Baker  (John  II),  30  P.3d  68  (Alaska  2001))).  



           58        John  I,  982  P.2d  at  758  (quoting  Montana  v.  United  States,  450  U.S.  544,  



564  (1981)).  



           59         See id. at 759.  

                                      



           60         See In re C.R.H., 29 P.3d 849, 852 (Alaska 2001).  

                                                                                             



           61         See Native  Village of Tanana, 249 P.3d at 736, 750-51.  

                                                                                                   



           62         25 U.S.C.  1901 et seq. (2012).  

                                                               



           63         See John I, 982 P.2d at 746-47.  

                                                             



           64         See id. at 754 ("Although the custody dispute at the center of this case falls  

                                                                                                                                      

outside ICWA's scope, Congress's purpose  in enacting ICWA reveals its intent that  

                                                                                                                                      

Alaska Native villages retain their power to adjudicate child custody disputes.").  

                                                                                                                 



                                                                   -18-                                                             7093
  


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

                                                 65  

 in non-Indian homes."                                Congress elected to address these practices by limiting state                                                           



 court jurisdiction and recognizing tribal court jurisdiction over ICWA-defined child                                                                                       

                                   66  Although the statute has provisions that establish the substantive law  

 custody matters.                                                                                                                                                               



                                                                                                                                                                             67  

                                                                                                                                                                                 -  

 state courts are to apply - for example, a preference order for adoptive placements                                                                                              

                                                                                                                                                       



 its  primary  means  to  enforce  its  provisions  is  an  allocation  of  jurisdiction  in  

                                                                                                                                                                                  



 ICWA-defined custody cases.  

                                                                  



                             Congress  has  not  suggested  that  similar  practices  exist  or  need  to  be  

                                                                                                                                                                                  



 addressed in the realm of child support.  Although Congress gave the Secretary of the  

                                                                                                                                                                                 



 Department of Health and Human Services the authority to reimburse tribes for child  

                                                                                                                                                                             

 support enforcement costs in 1996,68  Title IV-D of the Social Security Act is a funding  

                                                                                                                                                                      



 statute that does not purport to expand or otherwise alter its recipients' jurisdiction.  

                                                                                                                                                                                         



 Central Council's briefing  before the superior  court asserted  that its jurisdiction  to  

                                                                                                                                                                                   



 adjudicate child support is not tied to Title IV-D or to any other act of Congress.  

                                                                                                                                                      



                             Although ICWA was relevant to our earlier decisions on the subject matter  

                                                                                                                                                                          



jurisdiction of tribal courts, we have never suggested that it was the sole or even primary  

                                                                                                                                                                       



basis  of  that  jurisdiction.                              Doing  so  would  be  inconsistent  with  the  United  States  

                                                                                                                                                                          



 Supreme  Court's  pre-ICWA  recognition  of  tribal  court  jurisdiction  over  custody  

                                                                                                                                                                      



               65           Miss. Band of Choctaw Indians v. Holyfield                                                   , 490 U.S. 30, 32 (1989).             



               66            See  25 U.S.C.  1911;                         see also Native Village of Tanana                                       , 249 P.3d at 751           



 ("ICWA creates limitations on states' jurisdiction over ICWA-defined child custody                                                                                    

proceedings, not limitations on tribes' jurisdiction over those proceedings."); John I, 982  

                                                                                                                                                                               

 P.2d  at   753   ("ICWA's   goal   was   to   increase   tribal   control   over   custody   decisions  

 involving tribal children.").                               



               67            See 25 U.S.C.  1915(a).  

                                                               



               68            See Personal Responsibility and Work Opportunity Reconciliation Act of  

                                                                                                                                                                                   

 1996, Pub. L. No. 104-193,  375, 110 Stat. 2105 (1996).  

                                                                                                           



                                                                                       -19-                                                                                  7093
  


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

               69  

matters.           Instead, in          John I  , our examination of ICWA was in service of the point that                                               



an earlier statute, ANCSA, was not intended to "eradicate tribal court jurisdiction over                                                                

                                     70   We "follow federal law by beginning from the premise that tribal  

family law matters."                                                                                                                                   



                                                                                                                                                         71  

sovereignty with respect to issues of tribal self-governance exists unless divested."                                                                        

                                                                                                                                       



                         At issue in both John I  and this case is the inherent power of tribes "to  

                                                                                                                                              

conduct internal self-governance functions."72                                         Although child support is not governed  

                                                                                                                                               



by ICWA, as some child custody matters are, it is equally "a family law matter integral  

                                                                                                                                                  

to tribal self-governance,"73  and as such is part of the set of core sovereign powers that  

                                                                                                                                                         

tribes  retain.74              Moreover,  "Congress's  express  finding  in  ICWA  that  'there  is  no  

                                                                                                                                                          



resource that is more vital to the continued existence and integrity of Indian tribes than  

                                                                                                                                                        

their children' "75  is relevant to both child support and custody.  

                                                                                                      



                         Child support orders are a pillar of domestic relations and are directly  

                                                                                                                                                  



related  to  the  well-being  of  the  next  generation.                                         As  the  superior  court  explained,  

                                                                                                                                            



"[e]nsuring that tribal children are supported by their noncustodial parents may be the  

                                                                                                                                                          



            69           See  Fisher  v.  Dist.  Ct.  of the  16th  Jud.  Dist.  of  Mont., 424 U.S. 382,  389  



(1976).  



            70           982  P.2d  at  753.  



            71          Id.  at  752;  see  also  id.  at  752-53  ("[W]e  will  not  lightly  find  that  Congress  



intended  to  eliminate  the  sovereign  powers  of  Alaska  tribes.").  



            72          Id. at 758.  

                                    



            73          Id.  



            74           See Hepler v. Perkins, 13 INDIAN  L.  REP. 6011,  6015 (Sitka Cmty. Ass'n  

                                                                          

Tribal  Court,  Apr.  7,  1986)  ("Tribal  jurisdiction  to  care  for  tribal  children  is  simply  not  

related  to  nor  dependent  on  the  legal  status  of  any  given  parcel  of  land.").  



            75           Simmonds v. Parks, 329 P.3d 995, 1007 (Alaska 2014) (quoting 25 U.S.C.  

                                                                                                                                                    

 1901(3)).  

    



                                                                            -20-                                                                      7093
  


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

 same thing as ensuring that those children are fed, clothed, and sheltered.                                                            The future of        



 a tribe - like that of any society - requires no less."                                            "[A] tribe has a strong interest in                       

                                                                                                                                                      76  and  

 'preserving and protecting the Indian family as the wellspring of its own future,' "                                                                     



 determining what resources a child will enjoy from her parents is a crucial aspect of  

                                                                                                                                                             



promoting that interest.  As the United States Court of Appeals for the Ninth Circuit has  

                                                                                                                                                           



recognized, parental financial neglect of children "is a matter of vital importance to the  

                                                                                                                                                           

 community."77  



                         Recognizing                tribal        courts'         inherent,           non-territorial               subject   matter  

                                                                                                                                                   



jurisdiction over child support matters is consistent with our description of tribal power.  

                                                                                                                                                                  



Although our cases recognizing specific instances of that power have largely related to  

                                                                                                                                                             



 child custody, they are situated within the larger context of family affairs.  In John I we  

                                                                                                                                                           



recognized "the fundamental powers of tribes to adjudicate internal family law affairs  

                                                                                                                                                     

 like child custody disputes."78                          In Tanana we described John I as "foundational Alaska  

                                                                                                                                                    



 authority  regarding  Alaska  Native  tribal  jurisdiction  over  the  welfare  of  Indian  

                                                                                                                                                    

                   79    And in Simmonds v. Parks we reiterated that John I  recognized "tribal  

 children."                                                                                                                   

 sovereignty to decide cases involving the best interests of tribal children."80  

                                                                                                                                                        

                                                                                                                                           When child  



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



             77          United  States  v.  Ballek,   170  F.3d  871,  874  (9th  Cir.   1999)  (discussing  the  



importance  of  child  support  obligations  in  concluding  that  child  support  awards  may  be  

 enforced  through  imprisonment).  



             78          982 P.2d at 759.  

                                                



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

                                                                                                                                            



             80          329 P.3d at 1008.  

                                                



                                                                             -21-                                                                      7093
  


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

 support is ordered it is fundamental to its recipients' welfare and best interests and thus                                                               

 is "of vital and fundamental importance to tribal self-governance."                                                         81  



                         The subsequent history of the John v. Baker litigation also weighs in favor  

                                                                                                                                                         



 of Central Council's assertion of subject matter jurisdiction over child support orders.  

                                                                                                                                                                     



In John III we considered the argument that our decision in John I implicitly recognized  

                                                                                                                                              



tribal court subject matter jurisdiction over not just child custody matters but also child  

                                                                                                                                                          

 support matters.82   The posture of the case made it unnecessary for us to decide whether  

                                                                                                                                                    

the tribal court in fact had the necessary jurisdiction to issue child support orders.83   But  

                                                                                                                                                            



we  did  discuss  what  qualities  a  tribal  child  support  order  would  require  to  be  "a  

                                                                                                                                                              

recognizable child support order to which the [superior] court could extend comity."84  

                                                                                                                                                                     



Had the tribal court lacked subject matter jurisdiction to issue a child support order, this  

                                                                                                                                                            



 discussion of the proper contours of comity would have conflicted with our statement in  

                                                                                                                                                                



John I 's comity analysis that "our courts should refrain from enforcing tribal court  

                                                                                                                                                         

judgments if the tribal court lacked personal or subject matter jurisdiction."85  

                                                                                                                      



                         The  actions  of  the  federal  executive  branch  also  suggest  that  Central  

                                                                                                                                                    



 Council's tribal courtshaveinherent, non-territorial subject matter jurisdiction over child  

                                                                                                                                                          



             81          Id.  



             82          See  John  III,   125  P.3d  323,  326  (Alaska  2005).  



             83          See  id.  at  324  ("We  conclude  that the  superior  court  correctly  ruled  that  



 child   support   had   never   been   referred   to   the   tribal   court   and   that   the   division   could  

 enforce   the   court's   child  support   order.   This   disposes   of   the   case   and   makes   it  

unnecessary  to  resolve  the  additional  jurisdictional  issues.").  



             84          Id.  at 327; see also id. ("Although a tribal child support order need not  

                                                                                                                                                             

match the format of a support order issued by the Alaska courts, it must, at a minimum,  

                                                                                                                                                

be concrete enough to be enforceable.").  

                                                 



             85          982 P.2d 738, 763 (Alaska 1999).  

                                                                             



                                                                              -22-                                                                       7093
  


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

support matters.                The part of Title IV-D that makes Tribal IV-D programs like Central                                                



Council's   eligible   for   federal   reimbursement   requires   each   applicant   program   to  



"demonstrate[] to the satisfaction of the Secretary [of the Department of Health and                                                                     



Human Services] that it has the capacity to operate a child support enforcement program                                                          



meeting   the   objectives   of   this   part,   including   .   .   .   establishment,   modification,   and  

                                                               86      Similarly,  the  regulations  enacted  to  govern  

enforcement   of   support   orders."                                                                                                             



Tribal IV-D eligibility require that all applicant programs include "a description of the  

                                                                                                                                                          



population subject to the jurisdiction of the Tribal court or administrative agency for  

                                                                                                                                                          

child support enforcementpurposes."87  Central Council's application identified its tribal  

                                                                                                                                                       



court jurisdiction  over  child  support matters as stemming  from the tribal code and  

                                                                                                                                                         



constitutional provisions that allow jurisdiction based on certain acts of affiliation with  

                                                                                                                                                        



the Tribe, rather than asserting a territorial basis for jurisdiction.  By accepting Central  

                                                                                                                                                   



Council's application to make the Tribal Child Support Unit a Tribal IV-D program, the  

                                                                                                                                                           



Secretary of the Department of Health and Human Services confirmed that this assertion  

                                                                                                                                                



of  non-territorial  jurisdiction  over  child  support  matters  complies  with  the  federal  

                                                                                                                                                  



statutory and regulatory requirements for Tribal IV-D programs.  

                                                                                                     



                         The State argues that the near certainty that state agencies will be involved  

                                                                                                                                                



with the enforcement of child support orders issued by tribal courts distinguishes this  

                                                                                                                                                         



case from our previous decisions regarding child custody.   The State maintains that  

                                                                                                                                                         



requiring its state child support program, CSSD, to coordinate with many tribal courts  

                                                                              

will impose additional costs and disrupt the uniformity of child support awards.88                                                                         In  

                                                                                                                                                            



            86           42  U.S.C.    655(f)  (2012).  



            87           45  C.F.R.    309.70  (2015).  



            88           We note that while coordination costs will no doubt increase, it is                                                       hardly  



                                                                                                                                       (continued...)  



                                                                            -23-                                                                      7093
  


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

particular, the State points to the potential difficulty of modifying a tribal support order,                                                                                



which might prevent the State from recouping funds it spends on children in its custody                                                                                  

who are subject to a tribal order.                                    89  



                                                                                                                                                                                  

                             But these concerns do not limit the exercise of tribal court jurisdiction. Our  



                                                                                                                                                                          

decisions exploringtheretained inherentself-governancepowersofAlaskatribescontain  



                                                                                                                                                                             

no  suggestion  that  the  burden  on  state  agencies  associated  with  recognizing  tribal  



                                                                                                                                                                      

authority is part of the analysis.   The State's reliance on the United States Supreme  

                                                                                                                                                        90  is inapposite.  

                                                                                                                                                             

Court's discussion of "considerable" state interests in Nevada v. Hicks 



That case concerned "tribal authority to regulate state officers in executing process  

                                                                                                                                                                         

related to the violation, off reservation, of state laws."91                                                             The Supreme Court explicitly  

                                                                                                                                                                     



held that such authority "is not essential to tribal self-government or internal relations -  

                                                                                                                                                                                    



              88(...continued)  



                                                                                                                                                                         

clear that enforcement costs will similarly rise.  Central Council's Tribal Child Support  

                                                                                                                                                                             FFICE  

Unit distributed nearly $500,000 in child support collections in fiscal year 2012. O 

       CHILD   SUPPORT   ENFORCEMENT,   FY   2012   PRELIMINARY   REPORT   TO   CONGRESS  

OF  

(2013), Tbl. P-37.                        Without the Unit it would have fallen to CSSD to distribute those                                                                   

same collections.  To the extent that CSSD's enforcement costs may rise as a result of                                                                              

more tribal children and custodial parents having ready access to a tribunal that can                                                                                             

adjudicate their child support disputes, those increased costs will reflect an increased                                                                             

realization   of   the   role   that   CSSD   already   performs   so   admirably:   serving   Alaskan  

children.   



              89             UIFSAprovides for modification ofan out-of-statechildsupportorderonly  

                                                                                                                                                                                 

when:  (1) all parties consent; (2) none of the parties reside in the issuing state, the party  

                                                                                                                                                                              

seeking modification "is not a resident of this state," and "the respondent is subject to the  

                                                                                                                                                                                   

personal jurisdiction of the tribunal of this state;" or (3) "all of the individual parties  

                                                                                                                                                                           

reside in this state and the child does not reside in the issuing state." AS 25.25.611, .613.  

                                                                                                                                                                                           

We do not have occasion in this case to decide how the statutory references to residence  

                                                                                                                                                                     

should beinterpreted whentheissuing tribunal exercisesmembership-basedjurisdiction.  

                                                                                                                                                                                           



              90             533 U.S. 353, 364 (2001).  

                                                                      



              91            Id.  



                                                                                        -24-                                                                                  7093
  


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

                                                                                                      92  

to 'the right to make laws and be ruled by them.' "                                                        This holding did not depend on the                                



extent of the state's interest, but instead flowed from the Court's exploration of "what           



                                                                                                                                                             93  

is necessary to protect tribal self-government and control internal relations."                                                                                   



                                                                                                                                                                          

                            State agencies arealso involved in enforcing child custody orders, and non- 



                                                                                                                                                                          

compliance with these orders can expose parents to criminal contempt charges and  

                              94     And there is little doubt that child support enforcement frequently  

imprisonment.                                                                                                                                                



requires more routine and sustained contacts between a state enforcement agency and a  

                                                                                                                                                                                



noncustodial parent.  But this does not make child support any less focused on "[t]he  

                                                                                                                                              

welfare  of  tribal  children."95                                In  both  child  custody  and  child  support  matters,  the  

                                                                                                                                                                           



instruments of state government are employed as a means of enforcing duties that run  

                                                                                                                                                                  



between parents and children; their involvement does not transform the power at issue  

                                                                                                                                                                        



into one that is no longer concerned with internal domestic relations.  

                                                                                                                           



                              Ensuring  that parents  financially  care  for  their  children  is  a  pillar  of  

                                                                                                                                                                             



domestic  relations  and  is  directly  related  to  the  well-being  of  the  next  generation.  

                                                                                                                                                                                    



Setting, modifying, and enforcing such obligations is one way that "[t]ribal courts play  

                                                                                                                                                                          

a  vital  role  in  tribal  self-government."96                                           We  hold  that  tribal  courts  have  inherent,  

                                                                                                                                                                



non-territorial subjectmatter jurisdictiontoadjudicateparents' child supportobligations.  

                                                                                                                                                           



              92           Id.  (citing  Strate  v.  A-1  Contractors,  520  U.S.  438,  459  (1997)).  



              93           Id.  at  360;  see  also   Washington  v.  Confederated  Tribes  of  Colville  Indian  



Reservation,  447  U.S.   134,   154  (1980)  ("[E]ven  if  the  State's  interests  were  implicated  

by  the  tribal  taxes, a   question  we  need  not   decide,   it  must  be  remembered  that  tribal  

sovereignty  is  dependent  on,  and  subordinate  to,  only  the  Federal  Government,  not  the  

States.").  



              94            AS 09.50.010(5).  

                                    



              95            Simmonds v. Parks, 329 P.3d 995, 1008 (Alaska 2014).  

                                                                                                                                 



              96            See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987).  

                                                                                                                                      



                                                                                     -25-                                                                               7093
  


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

                  C.	              Tribal Courts' Inherent, Non-Territorial Subject Matter Jurisdiction                                                                                      

                                   Over Child Support Reaches Nonmember Parents Of Children Who                                                                                                                 

                                   Are Tribal Members Or Are Eligible For Membership.                                                                



                                   In the State's briefing before the superior court it argued that jurisdiction                                             



 over   nonmembers   is   an   issue   of   subject   matter   jurisdiction,   not   merely   personal  



jurisdiction.   In its briefing before this court and at oral argument the State urged us to                                                                                                                             



 address Central Council's subject matter jurisdiction over nonmembers.  As discussed  



 supra  in Part IV.A, we agree that identifying the individuals and families who might                                                                                                                        

 properly be brought before a tribal court is a question of subject matter jurisdiction.                                                                                                                                 97  

                                                                                                                                                                                                                                



                                                                                                                                                                                                    

 We also agree with the State that the issue is ripe for a decision, as the Tribe's complaint  



                                                                                                                                                                                                                      

 here asserted jurisdiction over all cases where the child is a member or is eligible for  



                                  98  

                                                                                                                                                                                             

 membership.                               As  the  State  noted  at  oral  argument,  that  set  of  cases  "necessarily  



                                                                                                                                                                                                              

 includes" cases in which the child is a member or is membership-eligible but one parent  



                                                                                                                                                                                                                

 is not.  And the issue is far from being an abstract question:  Central Council's tribal  



                                                                                                                                                                                                                        

 courts have already decided child support cases over the jurisdictional objections of  



                                                                                                                                                                                                              

 obligor  parents  who  are  neither  members  of  the  Tribe  nor  eligible  for  tribal  



                  97               This analysis does not change when one parent is not a member of the tribe,                                                                                                   



 notwithstanding any separate personal-jurisdiction challenges that a nonmember parent                                                                                                                        

 might raise.   



                  98               Although  the  Tribe  argued  that  we  need  not  address  the  question  of  

                                                                                                                                                                                              

personal  jurisdiction over nonmember parents, it took the position that the Tribe's  

                                                                                                                                                                                                          

 subject matter jurisdiction depends only on the membership status of the child.  Under  

                                                                                                                                                                                                             

 this theory, the nonmember status of a parent is not a bar to subject matter jurisdiction.  

                                                                                                                                                                                                                                

 It also urged us to affirm the superior court's decision, which recognized the Tribe's  

                                                                                                                                                                                                           

 subject matter jurisdiction over child support orders for tribal children without making  

                                                                                                                                                                                                          

 an exception for nonmember parents.  

                                                                            



                                                                                                          -26-	                                                                                                  7093
  


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

                                  99  

membership.                             Finally, as reflected in the parties' statements at oral argument, guidance                                                                                         



from this court can resolve this long-standing question and allow the parties to move                                                                                                                                



forward together in enforcing child support orders for the benefit of the Tribe's and the                                                                                                                                   



 State's children.   



                                    1.	              Because child support jurisdiction is tied to a tribe's inherent                                                                                      

                                                     sovereignty,  Montana v. United States                                                                   does not apply.          



                                   The   State   argues   that   the   United   States   Supreme   Court's   decision   in  

                                                                        100   permits  a  tribe  to  regulate  a  nonmember  only  if  the  

Montana  v.   United   States                                                                                                                                                                                             



nonmember enters into a consensual business relationship with the tribe or its members  

                                                                                                                                                                                                           



or if the nonmember's conduct on land the tribe owns within a reservation imperils the  

                                                                                                                                                                                                                           



very  existence  of  the  tribal  community.                                                                            The  State  contends  that  child  support  

                                                                                                                                                                                                              



adjudication does not fit within either of these circumstances, and thus that Central  

                                                                                                                                                                                                               



Council cannot exercise subject matter jurisdiction over nonmember parents in child  

                                                                                                                                                                                                                      



 support cases.  

                      

                                                                                                                                                                                    101  That casearose  

                                   Weconsideredasimilar argument in Simmondsv. Parks.  

                                                                                                                                                                                                                                      

out of a tribal court order terminating the parental rights of a nonmember.102  Rather than  

                                                                                                                                                                                                                        



appeal the decision within the tribal court system, the nonmember father sought to regain  

                                                                                                                                                                                                                   



                  99                Cf. State v. Native Village of Tanana                                                          , 249 P.3d 734 (Alaska 2011) (noting                                          



"anumberof                        hypothetical  fact patterns raising difficultquestions"about jurisdictionover                                                                                                         

parents,  id.  at 748, and the absence of "sufficient facts" to decide those questions,                                                                                                                               id.  at  

751, and therefore explicitly declining to decide "the extent of tribal jurisdiction over                                                                                                                              

non-member parents of Indian children,"                                                                      id.  at 752 (emphasis added)).                         



                  100	             450 U.S. 544 (1981).  

                                                                        



                  101	             329 P.3d 995 (Alaska 2014).  

                                                                                              



                  102	             Id. at 998.  

                                                   



                                                                                                             -27-	                                                                                                    7093
  


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

                                                                                        103  

 custody of his daughter in state court.                                                       We adopted the federal exhaustion of tribal                                               



remedies doctrine and held that parties are not permitted to collaterally attack tribal court                                                                                             



judgments unless they have exhausted all available appellate tribal court remedies or                                                                                                           

 satisfy one of the recognized exceptions to the doctrine.                                                                     104  



                               In  Simmonds  the State intervened and argued that exhaustion was not  

                                                                                                                                                                                             



required because the tribal court plainly lacked jurisdiction over nonmember parents of  

                                                                                                                                                                                                 

 tribal children.105  The State's argument relied heavily on its understanding that Montana  

                                                                                                                                                                                 



 and  a  subsequent  decision  by  the  United  States  Supreme  Court,  Strate  v.  A-1  

                                                                                                                                                                                           

                              106  jointly created a presumption that tribal courts lacked jurisdiction in  

 Contractors,                                                                                                                                                                                   

 circumstances like the one then at issue.107  

                                                                               



                               We rejected the State's argument and instead held that "tribal jurisdiction  

                                                                                                                                                                           



 [over nonmember parents in parental rights termination proceedings] is, at the very least,  

                                                                                                                                                                                          

 colorable and plausible."108                                       We carefully examined the federal cases that the State  

                                                                                                                                                                                         



 contended createdapresumptionagainst jurisdiction and determined that thosedecisions  

                                                                                                                                                                                 



were significantly more limited in scope than the State had acknowledged. "The United  

                                                                                                                                                                                      



 StatesSupremeCourt has repeatedly and explicitly emphasized thecontext-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  

                                                                                                                                                                                  



                103           Id.  



                104            See id.         at 1011-14.
   



                105            See id.         at 1019.
   



                106            520 U.S. 438 (1997).
           



                107            See Simmonds                     , 329 P.3d at 1019.
          



                108           Id.  at 1017.
   



                                                                                              -28-                                                                                        7093
  


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

                                                                   109  

inherent tribal sovereignty."                                             The question of tribal court jurisdiction over parental                                                        



rights termination proceedings significantly differed from the land management issues                                                                                                         



at play in            Montana ; no decision from any court had held that                                                                    Montana  prevented a tribal     



                                                                                                                                                                                                      110  

court from properly deciding a child custody proceeding involving nonmembers.                                                                                                                                 



Given the readily apparent distinctions between thelegal authority exercised by the tribal  

                                                                                                                                                                                                



court in Simmonds and that at issue in Montana and other cases, we concluded that the  

                                                                                                                                                                                                     



tribal court's claim to jurisdiction was both colorable and plausible, and therefore that  



the  nonmember  had  not  been  excused  from the  requirement  that  he  exhaust  tribal  

                                                                                                                                                                                               

appellate remedies before launching a collateral attack in state court.111  

                                                                                                                                                    



                               In Simmonds we were only charged with determining whether the tribal  

                                                                                                                                                                                               



court's  claim  to  jurisdiction  over  a  nonmember  parent  on  the  basis  of  a  child's  

                                                                                                                                                                                          

                                                                                                                                                                     112      This case, in  

membership or eligibility for membership was colorable or plausible.                                                                                                                                   

                                                                                                                                               



contrast, requires that we decide whether tribal courts' inherent, non-territorial subject  

                                                                                                                                                                                           



matter jurisdiction does in fact extend to the adjudication of the child support rights and  

                                                                                                                                                                                                    



obligations  of  nonmember  parents  of  children  who  are  members  or  eligible  for  

                                                                                                                                                                                                   



membership.  We hold that because tribes' inherent authority over child support stems  

                                                                                                                                                                                              



from their power over family law matters concerning the welfare of Indian children -  

                                                                                                                                                                                                      



an area of law that is integral to tribal self-governance - the basis and limits of that  

                                                                                                                                                                                                   



authority are tied to the child rather than the parent.  

                                                                                                          



                109            Id.  at 1019.   



                110            See id.          at 1021-22.   



                111            See id.          at 1022.   



                112            See id.;  see also Atwood v. Fort Peck Tribal Court Assiniboine                                                                                      , 513 F.3d   



943, 948 (9th Cir. 2008) (noting that exhaustion of tribal court remedies in a custody                                                                                                  

dispute was not excused because "[a]lthough the rights of non-member Plaintiff are  

                                                                                                                                                                                                    

affected, it is not clear that that fact alone would strip the Tribal Court of jurisdiction").  

                                                                                                                                                                                                              



                                                                                                 -29-                                                                                           7093
  


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

                       In  this  appeal,  the  State  once  again  argues  that  M 

                                                                                                                ontana   dictates  the  



outcome in this case and precludes subject matter jurisdiction over nonmember parents.                                               



Montana   is   a   case   about   the   power   of   a   tribe   to   regulate   "hunting   and   fishing   by  

                                                                                                          113   The Supreme Court  

nonmembers of a tribe on lands no longer owned by the tribe."                                                            



held  that  such  regulation  could  not  be  sustained  "as  an  incident  of  the  inherent  

                                                                                                                                    

sovereignty of the Tribe over the entire Crow Reservation."114                                               The Court announced  

                                                                                                                                



"the general proposition that the inherent sovereign powers of an Indian tribe do not  

                                                                                                                                             

extend to the activities of nonmembers of the tribe,"115  and then identified what have  

                                                                                                                                          

come to be known as "the Montana exceptions"116  to this proposition:  

                                                                                                  



                       A tribe may regulate, 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.  

                                                                                                                             

                       A  tribe  may  also  retain  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.[117]  

                                                                



The Supreme Court has clarified that "[t]hese exceptions are 'limited' ones, and cannot  

                                                                                                                                       

be construed in a manner that would 'swallow the rule' or 'severely shrink' it."118  

                                                                                                                                 



           113         See  Montana  v.   United  States,  450  U.S.  544,  564  (1981).  



           114        Id.  at  563.    



           115        Id.  at  565.
  



           116        E.g.,  Plains  Commerce  Bank  v.  Long  Family  Land  &  Cattle  Co.,  554  U.S.
  



316,  330  (2008).  



           117        Montana, 450 U.S. at 565-66 (citations omitted).  

                                                                                           



           118        Plains  Commerce,  554  U.S.  at  330  (first  quoting  Atkinson  Trading  Co.  v.  



                                                                                                                           (continued...)  



                                                                      -30-                                                               7093
  


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

                      "While the        Montana  Court stated its 'general proposition' in categorical                     



terms,   its   actual   conclusion   depended   on   its   examination   of   federal   executive   and  

                                                                                                     119   The Montana Court  

legislative action and intent regarding the regulation at issue."                                                                  

                                                                                               120   The Supreme Court has  

described the regulatory issue before it as "a narrow one."                                                                            

                                                                                       



 subsequently held that determining 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, 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."121   It has also called for "a proper balancing" of the  

                                                                                                                                        

interests  of  tribes  and  nonmember  litigants.122                              Justice  O'Connor,  in  a  concurring  

                                                                                                                          



opinion, noted that the holding in Montana and its progeny "that tribal jurisdiction must  

                                                                                                                                     



 'accommodat[e]' various sovereign interests does not mean that tribal interests are to be  

                                                                                                                                         

nullified through a per se rule."123  

                                                         



                      Moreover, it is important to consider the source of tribal authority that  

                                                                                                                                      



Montana and ensuing cases have analyzed, because it critically differs from the source  

                                                                                                                                  



           118(...continued)  



                                                                                                                                      

Shirley, 532 U.S. 645, 647, 655 (2001); then quoting Strate v. A-1 Contractors, 520 U.S.  

                 

438, 458 (1997)).  



           119        Simmonds v. Parks, 329 P.3d 995, 1020 (Alaska 2014) (citing Montana,  

                                                                                                                             

450 U.S. at 557-63).  

                    



           120        Montana, 450 U.S. at 557.  

                                                           



           121        Nat'l Farmers Union Ins. Cos. v. CrowTribeof Indians, 471 U.S. 845, 855- 

                                                                                                                                      

 56 (1985) (citation omitted).  

                                 



           122        Nevada v. Hicks, 533 U.S. 353, 374 (2001).  

                                                                                  



           123        Id. at395 (O'Connor, J.,concurring inpart) (alteration in original) (quoting  

                                                                                                                               

 Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 156 (1980)).  

                                                                                                                               



                                                                   -31-                                                             7093
  


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

of authority at issue here.  "Indian tribes are unique aggregations possessing attributes       



                                                                                                     124  

of sovereignty over both their members and their territory."                                                                        

                                                                                                           The authority Central  



                                                                                                                                  

Council invokes in this appeal stems from its sovereignty over its members. In contrast,  



                                                                                                                                         

the Montana Court analyzed the breadth "of the inherent sovereignty of the Tribe over  

                                                  125  - a distinctly territorial basis of sovereignty.   The  

                                                                                                                                         

the entire Crow Reservation" 



Supreme Court's later statements regarding the reach of tribal court jurisdiction have  

                                                                                                                                        

similarly  arisen  in  cases  in  which  tribes  invoked  authority  based  on  territory.126  

                                                                                                                                                  



Translating the Montana Court's analysis from the context in which it was delivered to  

                                                                                                                                             



that of this appeal is not the simple matter the State portrays it to be, but instead requires  

                                                                                                                                   



understanding how the limits of land-based sovereignty are related to its territorial basis,  

                                                                                                                                       



and  thus  what  similar  limits  may  exist  on  inherent  sovereignty  based  on  tribal  

                                                                                                                                      



membership.  



                      The Ninth Circuit considered the applicability of the Montana rule and the  

                                                                                                                                            



proper application of the Montana exceptions with regard to territorial sovereignty in a  

                                                                                                                                               

                                                                                                                127   In Water Wheel  

2011 case, Water Wheel Camp Recreational Area, Inc. v. LaRance.                                                                       

                                                                                                 



a tribal court exercised jurisdiction over claims arising from the tribe's lease of tribal  

                                                                                                                                       



           124         United States v.  Mazurie,  419 U.S.  544,  557 (1975);  cf.  John  I,  982  P.2d  



738,   759  (Alaska   1999)   ("The   federal   decisions   contain   language   supporting   the  

existence  of  tribal  sovereignty  based  on  either  land  or  tribal  status.").  



           125        Montana, 450 U.S. at 563 (emphasis added).  

                                                                                     



           126        See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 554  

                                                                                                                                          

U.S. 316, 320-23 (2008) (contract and other claims arising out of sale of non-Indian fee  

                                                                                                                                            

land within reservation); Hicks, 533 U.S. at 356-57 (tort and civil rights claims arising  

                                                                                                                         

out of search pursuant to state-issued warrant on tribal lands within reservation); Strate  

                                                                                                                                       

v. A-1 Contractors, 520 U.S. 438, 442 (1997) (tort claim arising out of accident on state  

                                                                                                                                         

highway within reservation).  

                            



           127        642 F.3d 802 (9th Cir. 2011).  

                                                             



                                                                     -32-                                                              7093
  


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

                                                                                                                                                           128  

 lands within a reservation to a non-Indian corporation owned by a non-Indian.                                                                                   A  



 federal district court determined that the tribal court had jurisdiction over the corporation                                                   



under the "consensual relationship"                                     Montana   exception but rejected its assertion of                                         

jurisdiction over the owner personally.                                    129  



                          The Ninth Circuit reversed and held that the district court had "appl[ied]  

                                                                                                                                                   

Montana unnecessarily."130                             It noted that "the Supreme Court has on only one occasion  

                                                                                                                                                      



 established an exception to the general rule that Montana does not apply to jurisdictional  

                                                                                                                                              

 questions arising from the tribe's authority to exclude non-Indians from tribal land."131  

                                                                                                                                                                        



 That sole exception, Nevada v. Hicks, concerned "tribal-court jurisdiction over state  

                                                                                                                                                              



 officers enforcing state law," who are "a narrow category of outsiders" whose liability  

                                                                                                                                                                        

 is of special state interest.132   And even Hicks "explicitly recognized that in some cases,  

                                                                                                                                                            



 land ownership 'may sometimes be a dispositive factor' in establishing a tribal court's  

                                                                                                                   

regulatory jurisdiction over non-Indians."133                                           Thus, the  Water Wheel court concluded,  

                                                                                                                                                  



 "Supreme Court and Ninth Circuit precedent, as well as the principle that only Congress  

                                                                                                                                                     



may limit a tribe's sovereign authority," all counseled in favor of applying Montana to  

                                                                                                                                                                   



jurisdictional questions arising on tribal land "only when the specific concerns at issue  

                                                                                                                                                             



             128          See id.       at 804-07.
   



             129  

                                                                                                                                                      

                          See Water Wheel Camp Recreational Area, Inc. v. LaRance, No. 08-0474,
  

                                                                                          

2009 WL 3089216, at *13 (D. Ariz. Sept. 23, 2009).  



             130           Water Wheel Camp Recreational Area, Inc., 642 F.3d at 807 n.4.  

                                                                                                                                                



             131          Id. at 813.  

                                      



             132          Id. (quoting Nevada v. Hicks, 533 U.S. 353, 358 n.2, 371 (2001)).  

                                                                                                                                          



             133          Id. (quoting Hicks, 533 U.S. at 360).  

                                                                                       



                                                                               -33-                                                                          7093
  


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

                             134  

in [  Hicks] exist."               Because the lease dispute in                     Water Wheel            did not involve state law            

enforcement, "   Montana  [did] not apply to this case."                                    135  



                        Water Wheel warned against the rote expansion of Montana to cases that  

                                                                                                                



arise on tribal land and thus are closely tied to the territorial basis of inherent tribal  

                                                                                                                                             

sovereignty.136             The same care must be paid when tribal courts claim jurisdiction over  

                                                                                                                                              



matters that are closely tied to the membership basis of inherent tribal sovereignty.  As  

                                                                                                                                                  



discussed in Part IV.B, supra, child support is a pillar of domestic relations and is  

                                                                                                                                                   



directly related to the well-being of the next generation of tribal members.   Central  

                                                                                                                                         



Council does not claim general jurisdiction over nonmember parents, but rather asserts  

                                                                                                                                           



specific  jurisdiction  to  adjudicate  child  support  matters  arising  out  of  a  parent's  

                                                                                                                                       



obligations to his or her tribal child, whose membership is the basis of inherent tribal  

                                                                                                                                             



            134        Id.  



            135        Id.  at 816;      see also id.        at 813 ("[Applying                Montana] would impermissibly     



broaden   Montana 's   scope   beyond   what  any  precedent   requires   and   restrain   tribal  

sovereign authority despite Congress's clearly stated federal interest in promoting tribal                                                   

self-government.").  



            136        See id.  at 812 n.7 ("Further bolstering our conclusion that the tribe has  

                                                                                                                                                

regulatory jurisdiction is the fact that this is an action to evict non-Indians who have  

                                                                                                                                              

violated their conditions of entry and trespassed on tribal land, directly implicating the  

                                                                                                                                                 

tribe's sovereign interest in managing its own lands."); see also Attorney's Process &  

                                                                                                                                                   

Investigation Servs., Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d 927, 940 (8th  

                                                                                                                                               

Cir.  2010)  ("Tribal  civil  authority  is  at  its  zenith  when  the  tribe  seeks  to  enforce  

                                                                                                                                         

regulations stemming from its traditional powers as a landowner.");  cf. Montana v.  

                                                                                                                                                   

 United States, 450 U.S. 544, 557 (1981) ("The Court of Appeals held that the Tribe may  

                                                                                                                                               

prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by  

                                                                                                                                                  

the United States in trust for the Tribe, and with this holding we can readily agree.  We  

                                                                                                                                                

also agree with the Court of Appeals that if the Tribe permits nonmembers to fish or hunt  

                                                                                                                                               

on such lands, it may condition their entry by charging a fee or establishing bag and creel  

                                                                                                                                              

limits." (citation omitted)).  

                              



                                                                       -34-                                                                  7093
  


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

 sovereignty.   The jurisdiction claimed is thus intimately tied to the identified basis of                                                                                                                          



 inherent tribal sovereignty.                                          Montana  does not apply to this case.                                            



                                  2.	              An alternative analysis under the                                                            Montana   exceptions would   

                                                   also allow a tribe to exercise jurisdiction.                                 



                                  Even if             Montana  did apply, Central Council's exercise of subject matter                                                                                    



jurisdiction over nonmember parents would fit within either of its two exceptions.                                                                                                                             The  



 first exception provides that "[a] tribe may regulate, through taxation, licensing, or other                                                                                                                 



 means, the activities of nonmembers who enter consensual relationships with the tribe  

 or itsmembers, through commercial dealing,contracts, leases,                                                                                             or other arrangements."                                    137  



                                                                                                                                                           

 This "consensual relationship exception requires that the tax or regulation imposed by  

                                                                                                                                                                     138   The "consent may  

                                                                                                                                                                                                                

 the Indian tribe have a nexus to the consensual relationship itself." 

be established 'expressly or by [the nonmember's] actions.' "139  

                                                                                                                                                         



                                  Contrary to the State's argument, even in territory-based sovereignty cases  

                                                                                                                                                                                                              



 the  exception  applies  to  more  than  just  business  relationships.                                                                                                        As  described  in  

                                                                                                                                                                                                                    

Montana  it encompasses "other arrangements,"140  which, as the Supreme Court later  

                                                                                                                                                                                                               

 clarified in Hicks, refer to "private consensual relationship[s]."141                                                                                                      In Smith v. Salish  

                                                                                                                                                                                                          



Kootenai College the Ninth Circuit, sitting en banc, recognized that the exception can  

                                                                                                                                                                                                                 



                  137             Montana, 450 U.S. at 565.
                              



                  138             Atkinson Trading Co. v. Shirley                                                 , 532 U.S. 645, 656 (2001).
                       



                  139              Water  Wheel,  642  F.3d  at  818  (alteration  in  original)  (quoting Plains
  

                                                                                                                                                                                                          

 Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 (2008)).  

                                                                                                                                                                                      



                  140	            Montana, 450 U.S. at 565.  

                                                                                          



                  141	            533 U.S. 353, 359 n.3 (2001).  

                                                                                            



                                                                                                        -35-	                                                                                                 7093
  


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

                                                                                                                          142  

reach consensual bonds that do not involve a business relationship.                                                             The  Smith  court  



 expressly   rejected   the   suggestion   that   the   first   Montana   exception  is   limited   to  



 commercial arrangements and instead explained that, in its view, "the Court's list in                                                                    

                                                                                   143   And in Water Wheel the Ninth Circuit  

Montana  is illustrative rather than exclusive."                                                                                                  



 further  explained  that  tribal  court  jurisdiction  under  the  first  Montana  exception  

                                                                                                                                           



 "depends on what non-Indians 'reasonably' should 'anticipate' from their dealings with  

                                                                                                                                                      

 a tribe or tribal members on a reservation."144  

                                                        



                         A relationship that leads to the birth of a child is one that has significant  

                                                                                                                                           



 consequences and obligations.  When two people bring a child into being each should  

                                                                                                                                        



reasonably anticipate that they will be required to care for the child and perhaps may  

                                                                                                                                                      



need to turn to a court to establish the precise rights and responsibilities associated with  

                                                                                                                                                      



the resulting family relationship.  This may require litigating in a court that is tied to the  

                                                                                                                                                         

 child but with which the parent has more limited contacts.145                                                    As applied to the broad  

                                                                                                                                                    



 category  of  nonmember  parents,  such  events  are,  in  at  least  some  circumstances,  

                                                                                                                                  



             142         434 F.3d 1127, 1140-41 (9th Cir. 2006) (en banc).                                



             143        Id.  at 1137 n.4.     



             144         Water Wheel, 642 F.3d at 817 (quoting Plains Commerce, 554 U.S. at 338);  

                                                                                                                                                     

see also id.  at 818 ("We are to consider the circumstances and whether under those  

                                                                                                                                        

 circumstances the non-Indian defendant should have reasonably anticipated that his  

                                                                                                                                                        

interactions might trigger tribal authority.").  

                                                           



             145         See,  e.g.,  AS  25.30.300(a)(1)  (courts  in  a  child's  home  state  have  

                                                                                                                                                    

jurisdiction to make initial child custody determinations); AS 25.25.201(6) (courts may  

                                                                                                                                                      

 exercise personal jurisdiction over nonresidents in child support matters if, among other  

                                                                                                                                                     

bases, the nonresident "engaged in sexual intercourse in this state and the child may have  

                                                                                                                                                      

been conceived by that act of intercourse"); Parker v. State, Dep't of Revenue, Child  

                                                                                                                                                    

Support Enf't Div., ex rel. R.A.W., 960 P.2d 586, 588 (Alaska 1998) (upholding state  

                                                                                                                                                      

 court  personal jurisdiction  to establish paternity and  child  support obligations of a  

                                                                                                                                                           

nonresident who conceived a child with an Alaska resident in Alaska).  

                                                                                                                  



                                                                           -36-                                                                     7093
  


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

                                                       146  

reasonably   foreseeable.                                        In    the    context  of    membership-based    inherent    tribal  



 sovereignty, relationships that give rise to the birth of a child fit within the first                                                                                     Montana  



 exception.  



                              The second                 Montana   exception provides that "[a] tribe may also retain                                                               



 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                                                                                                       

                                                                                                                                                                              147     "The  

political integrity, the economic security, or the health or welfare of the tribe."                                                                                                   



 conduct must do more than injure the tribe, it must 'imperil the subsistence' of the tribal  

                                                                                                                                                                                      

 community."148  



                              Although the United States Supreme Court "has never found the second  

                                                                                                                                                                                  

 exception applicable,"149  the lower federal courts have.  In Elliott v. White Mountain  

                                                                                                                                                                           



Apache Tribal Court  the Ninth Circuit held that a tribal court did not plainly lack  

                                                                                                                                                                                       



jurisdiction over a civil action that the tribe brought against a nonmember arising out of  

                                                                                                                                                                                             

                                                                                                                                        150    The court decided that  

 a fire she had set on tribal land within the tribe's reservation.                                                                                                                       

                                                                                                              



the  tribal  court's  claim  to  jurisdiction  under  the  second  Montana  exception  was  

                                                                                                                                                                                       



 "compelling . . . particularly in light of the result of the alleged violations of those  

                                                                                                                                                                                     



regulations in this very case:  the destruction of millions of dollars of the tribe's natural  

                                                                                                                                                                                  



               146            As   discussed   in   Part   IV.D,   infra,   our   decision   in   this   appeal   is   only  



 concerned with tribal court subject matter jurisdiction over nonmember parents as a                                                                                  

 category.   We offer no opinion on the proper contours of personal jurisdiction.                                                                    



               147            Montana v. United States, 450 U.S. 544, 566 (1981).  

                                                                                                                                    



               148            Plains Commerce, 554 U.S. at 341 (quoting Montana, 450 U.S. at 566).  

                                                                                                                                                                                   



               149            CONFERENCE OF                        W. A       TT'YS  GEN., A                 MERICAN  INDIAN  LAW  DESKBOOK  209  



                                                       

 (Clay Smith ed., 4th ed. 2008).  



               150            See 566 F.3d 842, 844-45 (9th Cir. 2009).  

                                                                                                              



                                                                                            -37-                                                                                      7093
  


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

                     151  

resources."                The Eighth Circuit, in                    Attorney's Process & Investigation Services, Inc.                                     



v.   Sac & Fox Tribe of Mississippi in Iowa                                      , similarly looked to the magnitude of the                                 



alleged violation in holding that tort actions arising from an attempted physical takeover                                                        

                                                                                                              152  And in  Water Wheel the  

of a tribal casino fit within the second                                Montana exception.                                                                  



Ninth Circuit held that even if Montana applied, the fact that "the commercial dealings  

                                                                                                                                                   



between the tribe and [the non-Indian owner] involved the use of tribal land, one of the  

                                                                                                                                                            



tribe's          most         valuable             assets,"           would           fit      the       action          within           the       second  

                                                                                                                                                 

Montana exception.153  

                   



                         In  light  of  these  precedents  we  have  no  difficulty  holding  that  the  

                                                                                                                                                           



adjudication of child support obligations owed to tribal children falls within the second  

                                                                                                                                                     



Montana exception. Congress has explicitly found "that there is no resource that is more  

                                                                                                                                                         

                                                                                                                                                   154  And  

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

                                                                                                                                  



as the superior court correctly recognized, "[e]nsuring that tribal children are supported  

                                                                                                                                                



by their noncustodial parents may be the same thing as ensuring that those children are  

                                                                                                                                                            



fed, clothed, and sheltered.  The future of a tribe - like that of any society - requires  

                                                                                                                                                   



no less."  In light of federal precedent that recognizes that serious damage to territorial  

                                                                                                                                                



resources fits within the second Montana exception when a tribe's inherent sovereignty  

                                                                                                                                            



is based on territory, the serious potential for damage to the next generation of tribal  

                                                                                                                                                        



members posed by a tribe's inability to administer parental financial support of member  

                                                                                                                                                   



             151         Id.  at  850.
  



             152         See  609  F.3d  927,  939  (8th  Cir.  2010).
  



             153          Water  Wheel  Camp  Recreational  Area,  Inc.  v.  LaRance,  642  F.3d  802,  818
  



(9th  Cir.  2011).  



             154         25  U.S.C.     1901(3)  (2012).  



                                                                             -38-                                                                       7093
  


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

or member-eligible children brings the power to set nonmember parents' child support                                                                                                                                                                                   



obligations within the retained powers of membership-based inherent tribal sovereignty.                                                                                                                                                                                                             



                                             In addition to complying with federal judicial precedent, our recognition                                                                                                                                    



of Central Council's jurisdiction over nonmember parents in the child support realmalso                                                                                                                                                                                            



complies with the federal executive branch's determinations.  As discussed above, the                                                                                                                                                                                                 



 Secretary of the Department of Health and Human Services had to approve Central                                                                                                                                                                                       



Council's application to make the Tribal Child Support Unit a Tribal IV-D program, and                                                                                                                                                                                              



by federal regulation that plan had to include "a description of the population subject to                                                                                                                                                                                                



the   jurisdiction   of   the   Tribal   court   or   administrative   agency  for  child   support  

                                                                               155  Central Council's application asserted jurisdictionon, among  

enforcement purposes."                                                                                                                                                                                                                                                    



other things, the basis of "sexual conduct which results in the paternity of a [Central  

                                                                                                                                                                                                                                                                 



Council] child and the corresponding obligation to provide for the child." By approving  

                                                                                                                                                                                                                                                               



Central Council's application, the Secretary implicitly recognized that tribal courts'  

                                                                                                                                                                                                                                                                        



assertion of  subject matter  jurisdiction over  nonmember  parents complied with  the  

                                                                                                                                                                                                                                                                                     



federal statutory and regulatory requirements for Tribal IV-D programs.  

                                                                                                                                                                                                               



                                             The holding we announce today comports with our previous decisions on  

                                                                                                                                                                                                                                                                                        



the inherent, non-territorial subject matter jurisdiction of tribal courts. In John I we held  

                                                                                                                                                                                                                                                                                  



that "[a] tribe's inherent sovereignty to adjudicate internal domestic custody matters  

                                                                                                                                                                                                                                                                       

depends on the membership or eligibility for membership of the child."156   Whether the  

                                                                                                                                                                                                                                                                                      



children whose custody was at issue were in fact eligible for tribal membership was  

                                                                                                                                                                                                                                                                                  



contested, and we determined  that their eligibility was "a critical fact that must be  

                                                                                                                                                                                                                                                                                       



                       155                   45  C.F.R.    309.70  (2015).  



                       156                   982  P.2d  738,  759  (Alaska   1999).  



                                                                                                                                          -39-                                                                                                                                                7093  


----------------------- Page 40-----------------------

                                                                                   157  

determined   by   the   superior   court   on   remand."                                   On   remand,   the   superior   court  



"concluded that the children were eligible for membership."   In our view, the superior   

court "correctly determined that [the tribe] had subject matter jurisdiction."                                                 158  



                                                                                                               159  in John I  did not  

                                                                                                                                             

                                                                                                

                       Our "focus on the tribal affiliation of the children" 



reflect any confusion over the membership status of the parents.  To the contrary, we  

                                                                                                                                             

repeatedly noted that "John is not a member of Northway Village."160  We also noted that  

                                                                                                                                            

John "consented to Northway's jurisdiction."161   Our recognition of this fact was critical  

                                                                                                                                       



because "subject matter jurisdiction is a threshold determination and prerequisite for a  

                                                                                      

court to hear a case;"162  it "cannot be waived" by a party's consent.163                                                  If the subject  

                                                                                                                                      



matter jurisdiction of a tribal court to hear a custody proceeding turned on the tribal  

                                                                                                                                         



affiliation of both parents rather than the child, the issue was squarely before us in  

                                                                                                                                               

                                                                                                                                164   That is  

John I, and we failed to fulfill our duty as a court to raise the issue ourselves.                                                              

                                                                                                                



not what happened.  Instead, we recognized in John I that a parent's membership status  

                                                                                                                                         



           157        Id.   



           158  

                                                                             

                      John II, 30 P.3d 68, 73 (Alaska 2001).
  



           159  

                                                        

                      John I, 982 P.2d at 759.
  



           160  

                                                                                                                                  

                      Id. ; see also id. at 743 ("Anita John, the children's mother and a member
  

                                                                                

of Mentasta Village, consented to Northway's jurisdiction.").  



           161        Id. at 743.  

                                 



           162        Hawkins v. Attatayuk, 322 P.3d 891, 894 (Alaska 2014).  

                                                                                                            



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

                                                                                                                              



           164         See id. at 894-95 ("The issue of subject matter jurisdiction 'may be raised  

                                                                                                                                        

at any stage of the litigation and if noticed must be raised by the court if not raised by  

                                                                                                                                              

one of the parties.' " (quoting Hydaburg Coop. Ass'n v. Hydaburg Fisheries, 925 P.2d  

                                                                                                                                           

246, 248 (Alaska 1996))).  

                               



                                                                      -40-                                                               7093
  


----------------------- Page 41-----------------------

 does not limit the tribal court's subject matter jurisdiction over the custody of tribal                                                                                          



 children.    In both custody matters like that before us in                                                                  John I      and the child support               



matters like that before us today, tribal courts' inherent, non-territorial subject matter                                                                                       

jurisdiction "depends on the membership or eligibility for membership of the child."                                                                                                      165  



                              Federal courts that have examined whether nonmember parents fall within  

                                                                                                                                                                                  



tribal courts' inherent, non-territorial subject matter jurisdiction have reached the same  

                                                                                                                                                                                    



 conclusion. In Kaltag Tribal Council v. Jackson, the federal district court addressed the  

                                                                                                                                                                                         



 argument that a tribe's inherent sovereignty only extended to domestic disputes in which  

                                                                                                                                                                                  

 all parties are members of the tribe.166   It rejected that argument, and instead held that "it  

                                                                                                                                                                                          



 is the membership of the child that is controlling, not the membership of the individual  

                                                                                                                                                                         

parents."167   The Ninth Circuit affirmed,168  and we reach the same conclusion in today's  

                                                                                                                                                                               



 opinion.  



                              "We have previously emphasized respect for tribal courts, and this respect  

                                                                                                                                                                                

                                                              169     We are sympathetic to the concerns that nonmember  

must inform our analysis."                                                                                                                                          

                              



parents may have about contesting their child support rights and obligations in a court  

                                                                                                                                                                          



 system that may be less familiar to them than the state courts.  But tribal courts that take  

                                                                                                                                                                                      



 on this responsibility share the goals of state courts and parents everywhere:  They are,  

                                                                                                                                                                                       



 as Central Council's child support enforcement agency states in the first sentence of its  

                                                                                                                                                                                          



 governing policy guide, "motivated anddedicated tobettering thefutureofour children."  

                                                                                                                                                                          



               165            John I  , 982 P.2d at 759.
                



               166            No. 3:06-cv-211, 2008 WL 9434481 (D. Alaska Feb. 22, 2008),                                                                                 aff'd, 344
   



 F.  App'x 324 (9th Cir. 2009).                     



               167            Id. at *6.  

                                           



               168            Kaltag Tribal Council v. Jackson, 344 F. App'x 324 (9th Cir. 2009).  

                                                                                                                                                                       



               169            Simmonds v. Parks, 329 P.3d 995, 1011 (Alaska 2014).  

                                                                                                                                          



                                                                                           -41-                                                                                     7093
  


----------------------- Page 42-----------------------

And what was true in 1999, when                                    John I    was decided, remains true today: "Recognizing                          



the ability and power of tribes to resolve internal disputes in their own forums, while                                                                             



preserving the right of access to state courts, can only help in the administration of justice                                                                    

for all."       170  



              D.           This Appeal Does Not Present Questions Of Personal Jurisdiction.  

                                                                                                                                               



                           The superior court's order granting Central Council summary judgment  

                                                                                                                                       



discussed the possibility that in some cases, "the exercise of [personal] jurisdiction by  

                                                                                                                                                  



the tribal court may well violate due process," citing the United States Supreme Court's  

                                                                                                                                                                



                                                                         171  

decision in Kulko v. Superior Court .  

                                                                                                                                                                         

                                                                               However, it found it unnecessary "to decide the  



                                                                                                                                                                        

precise outer limits of the [tribal] court's jurisdiction," and the declaratory judgment and  



                                                                                                                                                                     

permanent injunction it issued did not address questions of personal jurisdiction.  Both  



                                                                                                                                                                           

Central Council and the State submitted that these issues should be left "for decision in  



                                                                                                                                                                      

future cases." We agree that the question whether a tribal court exercising inherent, non- 



                                                                                                                                                                 

territorial subject matter jurisdiction has personal jurisdiction over the parties whose  



                                                                                                                                                             

rights and obligations it adjudicates should be decided in cases presenting concrete  



                                                                                                                                             

factual records and a full opportunity to develop the factual and legal arguments.  



V.            CONCLUSION  



                           The superior court's order is AFFIRMED.  

                                                                                       



              170          982  P.2d  at  760.  



              171          436  U.S.  84,  91-92  (1978).  



                                                                                   -42-                                                                                    7093  


----------------------- Page 43-----------------------

WINFREE, Justice, with whom STOWERS, Justice, joins, concurring in part.                                                                                                     



                               The superior court made two legal rulings underlying the declaratory and                                                                                            



injunctive relief entered in favor of the Central Council of Tlingit and Haida Indian                                                                                                      



Tribes of Alaska (the Tribe).                                       First, relying on our seminal holding in                                                    John v. Baker                    that  



Alaska tribes retained non-territorial-based inherent sovereign authority to adjudicate                                                                                            

custody disputes                       over children                   who aretribal                   members or eligible for tribalmembership,                                                         1  



it ruled that this inherent sovereign authority encompassed adjudication of child support  

                                                                                                                                                                                          



disputes over tribal children even if custody were not in dispute.  Second, it concluded  

                                                                                                                                                                                   



that with respect to child support orders issued by the Tribe, the State of Alaska was  

                                                                                                                                                                                                 



required to comply with the Uniform Interstate Family Support Act (UIFSA) and related  

                                                                                                                                                                                           



federal  and  state  regulations.                                           Today  the  court  affirms  those  legal  rulings  and  the  

                                                                                                                                                                                                   



associated injunctive relief, and I join that part of its decision.  

                                                                                                                            



                               But the court unnecessarily moves further and reaches out to provide an  

                                                                                                                                                                                                     

                                        2  on yet another legal issue:  whether a tribal court with non-territorial- 

advisory opinion                                                                                                                                                        

                      



based  inherent  sovereign  authority  to  adjudicate  matters  involving  tribal  children  

                                                                                                                                                                                      



necessarily has adjudicatory authority (subject to some unstated personal jurisdiction  

                                                                                                                                                                                



limitations) over non-tribal-member parents.  This issue is not necessary to the decision  

                                                                                                                                                                                        



before us, there is no specific controversy in this case necessitating a decision on the  

                                                                                                                                                                                                    



issue, there is no party in this case truly advocating for the interests of non-member  

                                                                                                                                                                            



                1              982 P.2d 738, 748-49 (Alaska 1999).                                                       



                2  

                                                                                                                                                                                          

                                Cf. Laverty v. Alaska R.R. Corp., 13 P.3d 725, 729 (Alaska 2000) (noting  

                                                                                                                                                                                                   

Alaska's Declaratory Judgment Act (AS 22.10.020(g)) does "not open the door for  

                                                                                                

hypothetical adjudications [or] advisory opinions").  



                                                                                                 -43-                                                                                          7093
  


----------------------- Page 44-----------------------

parents on the issue, and neither the Tribe nor the United States considered the issue                                                                                                              

worthy of significant briefing; I therefore do not join the court's advisory opinion.                                                                                                                 3  



                                I start with the basic proposition that this case does not involve an actual  

                                                                                                                                                                                           



child support dispute between the Tribe and a non-member parent based on an allegation  

                                                                                                                                                                                          



that the Tribe lacked adjudicatory authority over the parent.   This case involves the  

                                                                                                                                                                                                         



Tribe's demand that the State comply with UIFSA in connection with the Tribe's child  

                                                                                                                                                                                                     



support orders.  The superior court recognized that under its ruling a tribal court "could  

                                                                                                                                                                                                 



claim jurisdiction" to enter a child support order against a non-member parent, but  

                                                                                                                                                                                                        



believedpersonal jurisdictionconsiderations would definethecontours ofatribalcourt's  

                                                                                                                                                                                                 



authority and that further refinement was unnecessary at this time.  

                                                                                                                                                    



                                On  appeal  the  State  continues  to  argue  that  the  Tribe  does  not  have  

                                                                                                                                                                                                    



adjudicatory authority over non-member parents.   The Tribe and  the United States  

                                                                                                                                                                                                  



respond that this case does not raise any real dispute about tribal court adjudicatory  

                                                                                                                                                                                  



authority over non-member parents and that the potential involvement of non-member  

                                                                                                                                                                           



parents in some cases does not divest the Tribe of its otherwise inherent sovereign  

                                                                                                                                                                                        



authority to adjudicate child support for tribal children.  I agree with the Tribe and the  

                                                                                                                                                                                                         



United States. And I find it ironic that they - albeit backhandedly - are willing to give  

                                                                                                                                                                                                       



non-member  parents  a  future  opportunity  to  be  heard  on  the  Tribe's  adjudicatory  

                                                                                                                                                                                 



authority while the court is so anxious to decide the issue today without ever hearing  

                                                                                                                                                                                              



from a non-member parent.  

                                                  



                3               If today's decision is not dictum, then it seems clear - at least under the                                                                                              



court's interpretation of federal law - that whenever a tribal court has adjudicatory                                                                                             

authority over a tribal or tribal-eligible child it automatically has adjudicatory authority                                                                                               

over the child's non-member parent in any matter involving the child without regard to,                                                                                                                    

or a required nexus with, Indian country.                                      



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----------------------- Page 45-----------------------

                                                                                                                                    4  

                     This   case   comes  to  us  much   like   State   v.   Native   Village   of   Tanana,  



                                                                               5  

                                                                                                              

involving  the Indian Child  Welfare Act (ICWA).                                   In  that case we  concluded  that  



                                                                                                                   

federally recognized Alaska Native tribes that had not reassumed exclusive adjudicatory  



                                                                                                                         

jurisdiction still have concurrent jurisdiction to initiate ICWA-defined child custody  



                                                                                                                                 

proceedings - both inside and outside of Indian country - and are entitled to all the  



                                                                                                                               

rights and privileges of Indian tribes under ICWA, including full faith and credit with  

                                                                                6   But with an appropriate exercise  

                                                                                                                         

respect to their  ICWA-defined child custody orders. 



of judicial restraint, we rejected the State's entreaty to more particularly define the  

                                                                                                                                 



contours of tribes' adjudicatory jurisdiction, including their adjudicatory authority over  

                                                                                                                               

Indian children's7  non-member parents:  

                                                  



                     The nature and extent of tribal jurisdiction in any particular  

                                                                                                   

                     case will depend upon a number of factors, including but not  

                                                                                                             

                     limited  to:       (1)  the  extent  of  the  federal  recognition  of  a  

                                                                                                               

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

                                                                                                       

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

                                                                                                              

                     authority to its tribal court; and (4) the proper exercise of  

                                                                                                              

                     subject matter and personal jurisdiction.  Among the many  

                                                                                                         

                     issues we are not deciding today are:  . . . (2) the extent of  

                                                                                                    

                     tribal  jurisdiction  over  non-member  parents  of  Indian  

                                                                                                      

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

                                                                                                        

                     children or member parents who have limited or no contact  

                                                                                             

                     with the tribe. We therefore do not need to address the varied  

                                                                                                        

                     hypothetical  situations  posited  by  the  State  as  creating  

                                                                                                    



           4         249  P.3d  734  (Alaska  2011).  



           5         25  U.S.C.     1901-1963  (2012).  



           6         Native   Vill.  of  Tanana,  249  P.3d  at  751.   



           7         See  25  U.S.C.     1903(4)  (defining  "Indian  child").  



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----------------------- Page 46-----------------------

                         difficult jurisdictional questions - we leave those for later                                            

                                                                                                                            [  ]  

                         determinations under specific factual circumstances.                                               8 



I see no reason to dispense with this judicial restraint today.  

                                                                                                                   



                         The context of this case - a political jurisdictional battle between two  

                                                                                                                                                            



sovereigns - provides an additional reason for judicial restraint.  As outlined in Native  

                                                                                                                                                       



 Village of Tanana, the State's position on the nature and extent of tribal sovereignty has  

                                                                                                                                                             

waxed and waned depending upon the politics of the day.9                                                           But jurisdictional battles  

                                                                                                                                                      



between  the  State  and  Alaska  Native  tribes  are  inter-governmental  and  generally  

                                                                                                                                                



intended to delineate exclusive and concurrent jurisdiction boundaries and flesh out  

                                                                                                                                                             



related concepts like full faith and credit for tribal court orders.  In those battles - such  

                                                                                                                                                          



as in this case and in Native Village of Tanana - the State and the tribes are the primary  

                                                                                                                                                    



interested parties.  Here, for example, the State's argument that the Tribe lacked any  

                                                                                                                                              



adjudicatoryauthority overnon-members(withorwithoutconsent)toenter child support  

                                                                                                                                                     



orders was not out of a concern about non-members forced to appear in tribal courts  

                                                                                                                                                       



without consent, but rather out of a concern for its own budget - it simply did not want  

                                                                                                                                                          



to have to enforce  any of the Tribe's child support orders - and as a result of the  

                                                                                                                                                             



litigation the State now will, as a general matter, have to enforce the Tribe's child  

                                                                                                                                                         



support orders.  

                



                         On the other hand, a specific non-member parent's objection to a tribal  

                                                                                                                                                        



court's adjudicatory authority to issue a child support order would place the issue in a  

                                                                                                                  



very different factual and legal context.  It is not so clear to me that the State would be  

                                                                                                                                                               



an interested party to that specific dispute although, like the United States often does in  

                                                                                                                                                               



             8           Native Vill. of Tanana, 249 P.3d at 751-52 (emphasis added).                                                          If today's   



decision is not dictum, then it seems clear the court now has answered the noted issue left                                                                  

open in that case.       



             9           Id. at 744-47.  

                                     



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----------------------- Page 47-----------------------

Indian jurisdictional disputes, the State could participate as an amicus curiae. And given                                                                                                                                                                                                             



Alaska's unique Indian law environment -where                                                                                                                                        inherent sovereign authority is for the                                                                                     



most part untethered to Indian country - existing U.S. Supreme Court precedents seem                                                                                                                                                                                                                     



an imperfect roadmap for determining whether                                                                                                                                         a tribal court has such adjudicatory                                                   

authority.10  



                                                 Perhaps  this  distinction  can  be  made  more  clear  with  the  following  

                                                                                                                                                                                                                                                                                     



comments and questions.  The choice to seek U.S. Supreme Court review of today's  

                                                                                                                                                                                                                                                                                                



decision belongs solely to the State, not to a non-member parent of a tribal child.  That  

                                                                                                                                                                                                                                                                                                         



decision - like all previous State decisions regarding tribal sovereignty - will be  

                                                                                                                                                                                                                                                                                                                 



primarily a political decision, based on how the State wishes to co-exist with sovereign  

                                                                                                                                                                                                                                                                                        



tribes  within  its  boundaries.                                                                                       Who  in  this  case  represents  the  legal  interests  of  

                                                                                                                                                                                                                                                                                                                 



non-member parents of tribal children? No one. I do not find this particularly satisfying  

                                                                                                                                                                                                                                                                                        



for a court that prides itself on procedural fairness.  

                                                                                                                                                          



                         10                      With   this   in   mind   I   make   three   casual   observations   about   the   court's  



decision.   First, I am dubious of any analysis about tribal court adjudicatory authority                                                                                                                                                                                                 

over non-members that begins by rejecting                                                                                                                         Montana v. United States                                                                          , 450 U.S. 544                          

(1981), as the fundamental lens for the analysis. Second, the court conspicuously avoids                                                                                                                                                                                                            

discussing    substantial    case    law    indicating    that  the   Montana    exceptions    to    the  

presumption that tribal courts do not have adjudicatory authority over non-members                                                                                                                                                                                      

relate only to non-member conduct within reservations, which are virtually non-existent                                                                                                                                                                                       

in Alaska.                            See, e.g.                       ,  Plains Commerce Bank v. Long Family Land &Cattle Co.                                                                                                                                                           , 554 U.S.          

316,   327-35 (2008) (explaining                                                                                        Montana 's general principle's scope, specifying that                                                                                                                                

"Montana  and its progeny permit tribal regulation of non-member                                                                                                                                                                                      conduct  inside the   

reservation that implicates the tribe's sovereign interests").                                                                                                                                                             Finally, under a                                              Montana  

exception a non-member may consent to tribal court jurisdiction even if the tribal court                                                                                                                                                                                                                

otherwise would have no adjudicatory authority over the non-member. 450 U.S. at 565.                                                                                                                                                                                                                                           

It   is   difficult   to   understand   why   the   non-member   parent's   consent   to   tribal   court  

adjudicatory authority in                                                                   John v. Baker                                         , 982 P.2d 738, 743 (Alaska 1999), now - in                                                                                                                       

retrospect - demonstrates that tribal courts have adjudicatory authority over all non-                                                                                                                                                                                                                    

member parents of tribal children regardless of consent.                                                                                                                                                      



                                                                                                                                                       -47-                                                                                                                                               7093
  


----------------------- Page 48-----------------------

                                                                                           In my view whether tribal courts have adjudicatory authority over non-                                                                                                                                                                                                                                                                                                                                                                                                      



member parents of tribal or tribal-eligible children with respect to matters involving                                                                                                                                                                                                                                                                                                                                                                                                                                               



those children - when those matters arise untethered to Indian country - is a matter                                                                                                                                                                                                                                                                                                                                                                                                                                                               



best left for a day when we actually have before us a dispute between a tribe and a non-                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

member parent. Although the court's ultimate conclusion certainly is not implausible,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           11  



I do not join it or its underlying analysis.  

                                                                                                                                                                                                                        



                                                       11                                  Cf. Simmonds v. Parks                                                                                                                                  , 329 P.3d 995, 1017-22 (Alaska 2014) (concluding                                                                                                                                                                                                                    



tribal court's non-territorial-based claim of adjudicatory authority to terminate non-                                                                                                                                                                                                                                                                                                                                                                                                                                                                                

member parent's parental rights to tribal child was "plausible" so that non-member                                                                                                                                                                                                                                                                                                                                                                                                                             

parent was required to exhaust tribal court remedies before seeking state court relief).                                                                                                                                                                                                                                                                                                                                                                                                                                                            



                                                                                                                                                                                                                                                                                        -48-                                                                                                                                                                                                                                                                             7093
  

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