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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Amanda M. Peidlow, n/k/a Marlana Rexford v. Peter T. Williams, Vera A. Williams, and Waska A. Williams Jr., Native Village of Barrow v. Peter T. Williams; Amanda M. Williams, n/k/a Marlana Rexford; Vera A. Williams; and Waska A. Williams Jr. (3/20/2020) sp-7431

Amanda M. Peidlow, n/k/a Marlana Rexford v. Peter T. Williams, Vera A. Williams, and Waska A. Williams Jr., Native Village of Barrow v. Peter T. Williams; Amanda M. Williams, n/k/a Marlana Rexford; Vera A. Williams; and Waska A. Williams Jr. (3/20/2020) sp-7431

          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  



AMANDA  M.  PEIDLOW,  n/k/a                                 )  

MARLANA  REXFORD,                                           )         Supreme  Court  Nos.  S-16804/16893  

                                                            )         (Consolidated)  

                              Appellant,                    )  

                                                            )  

                    v.	                                     )                                                                

                                                                      Superior Court No. 2BA-13-00179 CI  

                                                            )  

                                                  

PETER T. WILLIAMS, VERA A.                                                                

                                                            )         O P I N I O N  

                                           

WILLIAMS, and WASKA A.                                      )  

                     

WILLIAMS JR.,                                                                                             

                                                            )         No. 7431 - March 20, 2020  

                              Appellees.	                   )
  

                                                            )
  

                                                            )
  

                                       

NATIVE VILLAGE OF BARROW,                                   )
  

                                                            )
  

                              Appellant,                    )
  

                                                            )
  

                    v.	                                     )  

                                                            )  

                                                         

PETER T. WILLIAMS; AMANDA M.)  

                              

WILLIAMS, n/k/a MARLANA                                     )  

                                     

REXFORD; VERA A. WILLIAMS;                                  )  

                                               

and WASKA A. WILLIAMS JR.,                                  )  

                                                               

                                                            )
  

                              Appellees.                    )
  

                                                            )
  



                                                                                                   

                    Appeals  from  the  Superior  Court  of  the  State  of  Alaska,
  

                                                                                                     

                    Second Judicial District, Utqiagvik, Angela Greene, Judge.
  



                                                                                                        

                    Appearances:  Matthew Singer, Jessica M. Brown, and Peter  

                                                                                                                

                    Scully, Holland & Knight LLP, Anchorage, for Appellants.  

                                                                                             

                    Ethel A. Patkotak, Patkotak Law Office, P.C., Kasilof, for  


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

                                                                                                         

                    Appellee  Peter  T.  Williams.                 Christopher  M.  Brecht  and  

                                                                                                      

                    Suzanne   A.   Adler,   Bankston   Gronning   O'Hara,   P.C.,  

                                                                                                   

                    Anchorage,   for   Appellees   Vera   Williams   and   Waska  

                                    

                    Williams Jr.  



                                                                                                        

                    Before:   Bolger,   Chief   Justice,   Winfree,   Stowers,   and  

                                                                                  

                    Maassen, Justices.  [Carney, Justice, not participating.]  



                                               

                    BOLGER, Chief Justice.
  

                                                     

                    STOWERS, Justice, dissenting.
  



I.        INTRODUCTION  



                                                                                                                

                    These consolidated appeals arise from concurrent custody proceedings  



                                                                                                                            

involving the same child before the courts of two independent sovereigns -  the State  



                                                                                                                       

of Alaska and the Native Village of Barrow (NVB).  A child custody case was initiated  



                                                                                                                       

in the Utqiagvik superior court.  Thereafter, NVB, through its tribal court, took custody  



                                                                                     

of the child in a tribal child in need of aid (CINA) case.  



                                                                                                                         

                    In 2016thesuperior court ultimately denied themother's statecourt motion  



                                                                                                                       

to modify custody.  NVB sought to intervene in the state custody case, but the superior  



                                                                                                                              

court denied its motion.  The mother appeals from the superior court's denial of her  



                                                                                                                    

motion to modify custody; NVB appeals from the order denying its motion to intervene.  



                                                                                                                     

                    The Indian Child Welfare Act (ICWA) requires a superior court receiving  



                                                                                                                            

a tribal court order to determine whether the order was issued in an ICWA-defined child  



                                                                                                                          

custody proceeding and, if it was, to follow ICWA  1911(d)'s full faith and credit  



                                                                                                                           

mandate.  Therefore, we conclude that the superior court erred in ruling that the NVB  



                                                                                                                        

tribal court lacked jurisdiction without following the procedures underlying the process  



                                                                                  

for giving full faith and credit to a tribal court order.  



                                                               -2-                                                         7431
  


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

II.        FACTS AND PROCEEDINGS     



                      A.W.  was born in 2004 to Amanda Peidlow and Peter Williams, and is an                                                 



                                           1  

enrolled member of NVB.                                                                                                            

                                             For the first five years of A.W.'s life, she lived with Amanda  



                                                                                                                                

and Peter with Peter's parents - Vera and Waska Williams - in Utqiagvik (formerly  



                                                                                                                             

known as Barrow). Peter and Amanda were never married: Their romantic relationship  



                                                                                                                                         

ended in 2010, at which point the family stopped living together. Vera and Waska have  



                                                                                                                                           

housed and cared for A.W. intermittently throughout her life. A.W. lived with Vera and  



                                                                                                                                         

Waska during part of 2010 and 2011, and then resided with Amanda from 2011 until  



                              

September 2015.  



                                                                            

           A.         Dueling Custody Proceedings  



                                                                                                                                      

                      In 2013 Peter filed a complaint in the Utqiagvik superior court for shared  



                                                                                                                                   

custody of A.W.  In Amanda's answer, she requested sole legal custody and primary  



                                                                                                                                          

physical custody.  In 2014 Vera and Waska petitioned for grandparent visitation and  



                                                                                                                         

moved to intervene in the custody case.  The superior court granted the grandparents'  



                                                                                                                              

motion  to  intervene,  but  disallowed  grandparent  visitation,  except  at  Amanda's  



                                                                                                                                        

discretion.  In March 2015 the court ordered interim legal and physical custody in favor  



                                                                                                                                                  

of Amanda. The court also ordered a custody investigator to conduct a full investigation.  



                                                                                                                                     

                      In September 2015 Amanda allegedly committed fourth degree assault  



                                                                                                                                            

against A.W. by hitting her in the face.  Peter was away subsistence hunting when the  



                                                                                                                               

alleged assault occurred.  NVB social services responded, and the tribe took emergency  



                                                                                                                                           

custody of A.W., placing her with her maternal grandmother.  Peter signed a care and  



                                                                 

safety plan from NVB social services.  



                                                                                                                                               

                      On September 22 Peter filed a motion in the superior court requesting a  



                                                                                                                                 

hearing  to  determine  "the  extent  of  domestic  violence  perpetrated  in  the  custodial  



           1  

                                                                                                                  

                      The daughter's initials are used to protect her privacy.  



                                                                      -3-                                                                   7431  


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

                                                                                                                                      

household" and for the court to issue "appropriate amended interim [custody] orders."  



                                                                                                                                  

On October 7 the superior court ruled that Peter would have interim physical custody of  



           

A.W.  



                                                                                                                                

                     In early October the tribal court extended NVB's custody over A.W. for  



                                                                                                                            

one year and ordered that both parents must finish case plans written by NVB social  



                                                                                                                                

services and approved by the tribal court.  The tribe placed A.W. with Peter in Vera and  



                          

Waska's home.  



                                                                                                                            

                     The superior court formally addressed the issue of the tribal court's CINA  



                                                                                                                        

jurisdiction in a November 2 order, stating in relevant part that the court "was apprised  



                                                                                                                              

of [NVB] taking [A.W.] under its custody and jurisdiction in the emergency arising after  



                                                                                                              

 [Amanda] assaulted [A.W.].  This [c]ourt expressed doubt that [A.W.] remains a child  



                                                                                                                            

in  need  of  aid,  since  [Peter]  has  assumed  physical  custody."                                 The  superior  court  



                                                                                                                                 

recognized, however, that "as of October 6, 2015, the [NVB] Tribal Court extended its  



                                                                                                                                 

jurisdiction for a year."  The court stated that as a matter of law, A.W. could not be  



                                                                                                                                      

subject to the tribal court's and the superior court's jurisdiction on the same legal issues.  



                                                                                                                                

                     The court erroneously stated that NVB had "requested that a copy of the  



                                                                                                                                 

order giving [Peter] full custody be given to the tribal court so that it could release its  



                                                                                                                               

jurisdiction and close the case."   In a footnote to its order, the court recognized that  



                                                                                                                                 

"[NVB] has 25 U.S.C. [] 1911(a) exclusive jurisdiction to care for its children," but the  



                                                                                                                         

court then reiterated its mistaken understanding that after the order was issued "[NVB]  



                                                                                                                       

agreed to drop its case so that two independent sovereigns do not each assert custody."  



                                                                                                                      

(Emphasis added.)  The court concluded its order by stating it had written a "one-page  



                                                                                                                               

summary" order, "distributed [the order] to the [NVB] Tribal Court," and "trust[ed] that  



                                                   

the matter ha[d] been resolved."  



                                                                      

           B.        The Superior Court Custody Trial  



                                                                                                                                      

                     The superior court held a four-day custody trial in March and April 2016.  



                                                                -4-                                                          7431
  


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

                                                                                                                           

At trial the issue of whether the tribal court CINA case was still pending came up several  



                                                                                                                           

times.   For example, the superior court discussed with the parties whether it should  



                                                                                                                                

release the custody investigator's report to the tribal court but ultimately determined that  



                                                                                                                         

it would not for confidentiality reasons.  During this discussion, counsel for Amanda  



                                                                                                                         

stated specifically that "there's still an ongoing child case in the tribal court."  



                                                                                                                            

                     Representatives from NVB were present at the hearing, and one spoke  



                                                                                                                                 

briefly with the superior court about the tribal court case.  During this discussion, the  



                                                                                                                       

following exchange occurred between the court and counsel for the parties:  



                                                                                         

                               [Judge Greene]:  I do have a bit of a concern though  

                                                                                                          

                     about an open child welfare case.  Last time we were here,  

                                                                                                        

                     the issue is that [Peter] and [Amanda] can't follow the orders  

                                                                                                        

                     of two courts at the same time.  So if the [NVB tribal court]  

                                                                                                               

                     makes a different rule than this court does, which one is he to  

                                                                                                             

                     follow?   That's the question, and that's generally why we  

                                                    

                     don't have . . . dual jurisdiction.  



                                        

                               . . . .  



                                                                                                            

                               [Counsel for Peter]: Your Honor, may I interject? The  

                                                                                                     

                    basis for my objection, and it still remains, and the decision  

                                                                                                            

                     is not - on the release is not mine to make.  However, this  

                                                                                                        

                     is a custody case.  The [NVB tribal court] action is a CINA  

                                 

                     action.  



                                                          

                               [Judge Greene]:  Right.  



                                                                                                        

                               [Counsel  for  Peter]:             Over  which  the  senior  judge  

                                                                       

                     extended jurisdiction for a solid year.  



                                                          

                               [Judge Greene]:  Right.  



                                                                                                          

                               [Counsel for Peter]:  And announced that they were  

                                                                                                    

                     going  to  hold  onto  jurisdiction  until  the  child  custody  

                                                                                                                

                     investigator's report was issued in the expectation that as a  

                                                                                                          

                     matter of - as a matter of right, they could demand a copy  

                               

                     of the information.  



                                                                            

                               . . . But my point is some of the tribal court's actions  



                                                                -5-                                                           7431
  


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

                                                                                                                   

                     that I'm aware were bleeding into [the] custody actions . . . .  



                                                                                                            

                               [Judge Greene]:  That's what I'm saying.  It was my  

                                                                                                           

                    understanding that that case was supposed to be closed. And  

                                                                                                              

                     this [c]ourt had sent over a copy of the award of custody to  

                                                                                                            

                     [Peter]. And then it was this [c]ourt's understanding that that  

                                                                                                           

                     case would be closed because it's the same child and they  

                                                                                                           

                     can't have dual jurisdiction over the same child, because then  

                                                                                                 

                     you got people trying to follow different court's orders.  



                                         

                               . . . .  



                                                                                                       

                               [Counsel          for     Amanda]:              Your        Honor,        these  

                                                                                                             

                     representatives of the [NVB] aren't really authorized to get  

                                                                                                          

                     into these issues regarding the tribal court.  So I don't want  

                                                                                                               

                     to put them into a position where they feel pressured to say or  

                                                                                                            

                     do something when . . . the tribal court made a decision.  The  

                                                            

                     courts can speak to each other.  



                                                                                                                        

                     On April 18, 2016, the superior court issued a final custody order awarding  



                                                                                                                     

sole legal and physical custody of A.W. to Peter and allowing Amanda supervised  



                                                                                                                             

visitation.  In the order, the superior court recognized that "NVB kept [its] case open,  



                                                                                                                                   

asserted custody of [A.W.], and set up visitation and . . . case plans for the parents."  In  



                                                                                                                                   

bold print at the end of its order the superior court stated:  "The [NVB] has no ability to  



                                                                                                                                

supersede  or  modify  these  conditions,  or  any  other  order  of  this  Court,  under  any  



                                                                                                                               

circumstances.  The parents are not bound by orders issued by the [NVB] in this case  



                                                  

only."  (Emphasis in original.)  



                                                                                                        

          C.         Amanda's Motions To Modify The Final Custody Order  



                                                                                                                          

                     In September 2016, five months after the superior court's final custody  



                                                                                                                         

order, Amanda (self-represented) filed a motion in the superior court to change custody,  



                                                                                                                          

support, and visitation. Sheexplained that she had completed domestic violence courses,  



                                                                                                                                 

attended Alcoholics Anonymous and Narcotics Anonymous classes to maintain her  



                                                                                                                             

sobriety,  maintained  a  full-time  permanent  job,  and  regained  custody  of  her  other  



                                                                -6-                                                           7431
  


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

children; she argued that these factors constituted a substantial change in circumstances                                              



for the purposes of modifying custody and visitation.                                                



                         The   superior   court   held   a   hearing   on   the   modification   motion   on  

                                                                                                                                   2   Following the  

January 18, 2017, at which only Amanda and her mother were present.                                                                                         



hearing the court ordered that Amanda could have unsupervised visitation and that she  

                                                                                                                                                           



could file an amended motion further detailing her request for a change in custody.  On  

                                                                                                                                                            



January 24 Amanda filed an amended motion to change custody.   She repeated the  

                                                                                                                                                           



reasons included in her first motion and added that she "successfully completed [her]  

                                                                                                                                                        



case plan with the [NVB] Social Services Department and was granted custody of [her  

                                                                                                                                                          



two] other children."  She served her amended motion on counsel for Peter and counsel  

                                                                                                                                                   



for Vera and Waska.  

                                         



                         Peter and his parents filed oppositions to Amanda's amended motion to  

                                                                                                                                                             



change custody.  On March 14 Amanda filed a second amended motion - this time  

                                                                                                                                                         



asserting a change in circumstances due to A.W. allegedly being subjected to verbal and  

                                                                                                                                                           



emotional abuse by Peter's partner Ethel, and due to concerns that Peter and Ethel were  

                                                                                                                                                        



abusing drugs and alcohol. Vera and Waska opposed the amended motion, as did Peter.  

                                                                                                                                                                   



            D.           The NVB Tribal Court's Orders And The Superior Court's Response  

                                                                                                                                               



                         On April 21, 2017, the tribal court filed an order in the superior court  

                                                                                                                                                       



custody case.  The order included a jurisdictional statement that claimed jurisdiction  

                                                                                                                                            



pursuant to specific sections of NVB's judicial and children's codes.  The order listed  

                                                                                                                                                       



A.W., Amanda, and Peter as parties, and it contained eight findings followed by four  

                                                                                                                                                         



directives.  In the order the tribal court commented specifically on the superior court  

                                                                                                                                                       



having granted Peter custody of A.W. in October 2015 even though the tribal court had  

                                                                                                                                                           



taken physical and legal custody of her in September 2015.  The tribal court explained  

                                                                                                                                               



            2  

                                                                                                                                                   

                         Superior  Court  Judge  pro  tem Michael  Jeffery  conducted  this  hearing  

                                                                                             

because Judge Greene was on extended personal leave.  



                                                                              -7-                                                                            7431  


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

that the tribe would not dismiss its case "until all that has been ordered in previous Tribal                                                                                                               



Court Orders ha[d] been completed." The tribal court concluded its order by stating that                                                                                                                          



A.W.  would be "placed in a six month trial physical custody of the mother" and that "the                                                                                                                       



child [would] remain in the legal custody of the tribe until April 13, 2018."                                                                                                                  



                                  On June 6 the tribal court filed Alaska Court System form CN-600 titled                                                                                                    



"Request To Register Tribal Court ICWA Custody Order" with the superior court in a                                                                                                                                      



separate case.                      The tribal court listed its April order on the form as the order it sought to                                                                                                     

                                                                                                                                                                                                    3  finding  

register.   On July 24 the superior court issued an order in the registration case,                                                                                                                     



the tribal court's notice of registration invalid and unenforceable by the State of Alaska.  

                                                                                                                                                                                                                             



The superior court explained that the tribal court "did not check one of the boxes [on  

                                                                                                                                                                                                                  



form CN-600] pertaining to ICWA placements and termination of parental rights."  The  

                                                                                                                                                                                                                 



superior court stated that the tribal court's "order is invalid because . . . NVB does not  

                                                                                                                                                                                                     



have any jurisdiction in a custody dispute."  The superior court distributed its order to  

                                                                                                                                                                  



Peter and Amanda.  

                                                  



                                  On July 25 the superior court issued an order in the custody case denying  

                                                                                                                                                                                                      



Amanda's motion to modify custody and ruling that the tribal court's April order was not  

                                                                                                                                                                                                                   



enforceable.  The court explained in its order that Amanda had failed to plead a prima  

                                                                                                                                                                                        



facie  case  that  a  substantial  change  of circumstances  existed  in  order  to  warrant  a  

                                                                                                                                                                                                                       



hearing.  The second half of the superior court's order addressed the tribal court's April  

                                                                                                                                                                                                             



order.                The  superior  court  asserted  that  the  tribal  court  "has  not  granted  [its]  

                                                                                                                                                                                                              



orders . . . full faith and credit, or comity" and that "NVB misled the [c]ourt and the  

                                                                                                                                                                                    



parties as to its intent regarding its [CINA] case."  The court stated that "neither the  

                                                                                                                                                                                                                  



parties nor the [c]ourt had notice of the status of the [CINA] case when the [c]ourt issued  

                                                                                                                                                                                                           



                 3  

                                                                                                                                                                                               

                                  Judge Greene, having returned from leave, issued these and all subsequent  

                   

orders.  



                                                                                                          -8-                                                                                                          7431  


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

the Final Custody Order" and that "[a]t the conclusion of the custody hearing . . . the                                                               



                                                                                                                            4  

NVB representative stated it was withdrawing the [CINA] petition."                                                              



                        The superior court provided the following reasons why the tribal court's  

                                                                                                                                                



order was not enforceable:  (1) "ICWA does not apply in a custody case"; (2) "once the  

                                                                                                                                                        



custody petition was filed in this case [in 2013], because ICWA's provision for exclusive  

                                                                                                                                            



tribal  jurisdiction  d[id]  not  apply,  [the  superior  court]  had  exclusive  jurisdiction  

                                                                                                                                       



regarding [A.W.]'s custody"; (3) the tribal court's order was "riddled with mistakes,  

                                                                                                                                            



[was] misleading, and [lacked] notice as required under Alaska law"; (4) "[A.W.] was  



subject to the jurisdiction of [the superior court] long before the Tribe opened its child  

                                                                                                                                                    



protection case"; and (5) "the Tribe had an opportunity at the custody hearing to make  

                                                                                                                                                   



its position clear, and the [superior court] and the parties [were] permitted to rely on its  

                                                                                                                                                         



representation that the petition would be withdrawn and the case closed." In conclusion  

                                                                                                                                          



the superior court stated: "The Tribal Court Order of April 21, 2017, purporting to place  

                                                                                                                                                    



[A.W.] in the physical custody of her mother and legal custody with the NVB is not  

                                                                                                                                                       



enforceable by the State of Alaska."  

                                                   



                        Following the superior court's order denying Amanda's motion to modify  

                                                                                                                                                



custody, on July 27 the tribal court filed a second order in the superior court custody  

                                                                                                                                               



case. The tribal court's second order was similar to its first but included a more in-depth  

                                                                                                                                              



timeline. The tribal court explained that it would continue to assert exclusive jurisdiction  

                                                                                                                                         



over matters involving tribal children.  

                                                                       



                        The superior court distributed the tribal court'sorder to Amanda, Peter, and  

                                                                                                                                                       



Vera and Waska - accompanied by a notice allowing 15 days for a response from the  

                                                                                                                                                        



parties.  The last line of the superior court's notice included the following statement in  

                                                                                                                                                          



bold:         "[NVB]'s  Tribal  Court  Orders  are  not  valid  orders  because  NVB  has  no  

                                                                                                                                                        



            4  

                                                                                                                                                    

                        As explained above, the record shows that the representative from NVB  

                                                                                                                                                         

social services did not state that the tribal court was withdrawing its CINA petition.  



                                                                            -9-                                                                          7431  


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

jurisdiction in a child custody dispute.                                                                                                                                                             The Tribal Court Orders are not enforceable by                                                                                                                                                                                         



 the State of Alaska."  None of the parties responded to the tribal court's second order.                                                                                                                                                                                                                                                                                                                                                                   



                                                                     On August 22 the superior court issued an order responding to the tribal                                                                                                                                                                                                                                                                                 



 court's   second   order.     The   superior  court   asserted   that   "NVB   does   not   have   any  



jurisdiction over [A.W.]" and that "it cannot issue enforceable orders regarding her                                                                                                                                                                                                                                                                                                                                                   



 custody."   The court additionally stated that "NVB is not a party to the case," that the                                                                                                                                                                                                                                                                                                                                               



 court had "read and considered the arguments" in the tribal court's order as a "courtesy,"                                                                                                                                                                                                                                                                                               



 and that the court "reject[ed] NVB's position that it can issue a custody order that                                                                                                                                                                                                                                                                                                                                              



 directly and expressly interferes with orders of [the superior court]."                                                                                                                                                                                                                                                                                        



                                   E.                                NVB's Motion To Intervene                                                                                                                                  



                                                                     On August 23 NVB filed a motion in the superior court to intervene, as a                                                                                                                                                                                                                                                                                                      



 matter of right pursuant to Alaska Civil Rule 24(a), and at the superior court's discretion                                                                                                                                                                                                                                                                                                           



 in accordance with Rule 24(b).  On August 25 Amanda filed an appeal of the superior                                                                                                                                                                                                           



 court's order denying her motion to modify custody.                                                                                                                                                                                                                          On October 12 the superior court                                                                                                                



 denied NVB's motion to intervene, concluding that the court did not have jurisdiction   



 to   grant NVB's motion                                                                                                       because of Amanda's pending                                                                                                                                          appeal.     The   superior  court  



 alternatively concluded that NVB could not intervene as a matter of right because the                                                                                                                                                                                                                                                                                                                                                   



 tribal court did not have jurisdiction over the custody case, it was not a de facto party,   



 its motion to intervene was untimely and would prejudice the parties, and the court                                                                                                                                                                                                                                                                                                                                         



 would not permit discretionary intervention. NVB filed an appeal of the superior court's                                                                                                                                                                                                                                                                                                                              



 order denying its motion to intervene, and we have consolidated Amanda's and NVB's                                                                                                                                                                                                                                                                                                                                 



 appeals.  



 III.                               STANDARD OF REVIEW  

                                                                                                                                 

                                                                     "We evaluate de novo the scope of tribal jurisdiction . . . ."5  

                                                                                                                                                                                                                                                                                                                                                                                                             "Under  



                                   5                                 State  v.  Native   Vill.  of  Tanana,  249  P.3d  734,  737  (Alaska  2011).  



                                                                                                                                                                                                                    -10-                                                                                                                                                                                                         7431  


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

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



                                         6  

reason, and policy.' "                       



IV.          DISCUSSION  



                          Amanda appeals from the superior court's denial of her motion to modify  

                                                                                                                                                       



 custody, but her arguments are focused mainly on the superior court's jurisdiction.  She  

                                                                                                                                                             



 argues that the superior court erred by concluding that NVB did not possess exclusive  

                                               



jurisdiction over its tribal CINA case; that the superior court failed to communicate with  

                                                                                                                                                            



the tribal court regarding its exercise of exclusive jurisdiction; that the tribal CINA case  

                                                                                                                                                            



met the definition of an ICWA-defined child custody proceeding; that on remand the  

                                                                                                                                                              



 superior court must follow the procedure outlined in CINA Rule 24 for registration of  

                                                                                                 



 a tribal court order; that the superior court erred by failing to grant full faith and credit  

                                                                                                                                                         



to the tribal court's orders; and that the superior court's orders must be vacated because  

                                                                                                                                                     



they were issued without jurisdiction.  NVB makes many of the same arguments in its  

           



 appeal from the superior court's denial of its motion to intervene.  

                                                                                                                              



             A.           ICWA's Full Faith And Credit Mandate  

                                                                                          



                          ICWA  1911(d) directs states to grant "full faith and credit to the public  

                                                                                                                                                         



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

                                                                                                                                                          



 custody proceedings to the same extent that such entities give full faith and credit to the  

                                                                                                                                                               

public acts, records, and judicial proceedings of any other entity."7  

                                                                                                                                



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



             7  

                                                                                                                                                                 

                          25 U.S.C.  1911(d) (2018); see also Native Vill. of Tanana, 249 P.3d at  

                                                                                                                                                             

 751 (holding that federally recognized Alaska tribes "are entitled to all of the rights and  

privileges of Indian tribes under ICWA, including . . .  1911(d) full faith and credit with                                                                

                                                                                                                                                             

respect to ICWA-defined child custody orders to the same extent as other states' and  

                

 foreign orders.").  



                                                                              -11-                                                                        7431
  


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

                        In  Simmonds v. Parks                 we considered a             tribal CINA proceeding in                      which the  



                                                                                                                            8  

Minto Tribal Court terminated a non-Indian father's parental rights.                                                                    

                                                                                                                                We addressed  



                                                                                                                                                 

whether full faith and credit under ICWA  1911(d) should be granted to a tribal court  

                                                                 9  We first asked whether thetribal courtproceeding  

                                                                                                                                       

                                                       

judgment terminating parental rights. 



wasan ICWA-defined child custody proceedingsuch that  1911(d) applied to thetribe's  

                                                                                                                                                

judgment. 10           It was undisputed that the child at issue was an Indian child under ICWA;  

                                                                                                                                             



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

                                                                                                                                                   



 and she was formally enrolled" as a member; and that "Minto Tribal Court's custody and  

                                                                                                                                                    



termination   proceedings   satisfied   ICWA's   definition   of   Indian   child   custody  

                                                                                                                                          

proceedings."11                After  determining  that these three requirements were satisfied,  we  

                                                                                                                                                     

 concluded that "ICWA  1911(d)'s full faith and credit mandate applie[d]."12  

                                                                                                                                           



                        Weprovidedguidanceto Alaskasuperior courtsin Simmonds on theproper  

                                                                                                                                               



 steps  a  court  should  follow  when  receiving  an  order  from  a  tribal  court.                                                           After  

                                                                                                                                                



 articulating the threshold question a superior court must answer when receiving a tribal  

                                                                                                                                                 



 court  order  -  whether  the  order  was  issued  in  an  ICWA-defined  child  custody  

                                                                                                                                            



proceeding - we provided direction regarding  1911(d)'s full faith and credit mandate.  

                                                                                                                                                            



We explained:  

         



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

                                                                                                                                 

                        sister state only in limited circumstances, including situations  

                                                                                                                  

                        where (1) the issuing court lacked personal or subject matter  

                                                                                                                        

                        jurisdiction when it entered its judgment; or (2) the issuing  

                                                                                                                      



            8           329 P.3d 995, 1007 (Alaska 2014).                   



            9  

                                   

                        Id. at 1010.  



            10          Id.  



            11  

                               

                        Id.  



            12  

                               

                        Id.  



                                                                          -12-                                                                   7431
  


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

                     court   failed   to   render  its   judgment   in   accordance   with  

                     minimum due process.              [13]  



We reaffirmed that "[a] sister state's judgment is presumed to be entitled to full faith and  

                                                                                                                                



credit, and the burden of proof is properly on the party challenging the validity of the  

                                                                                                                                

judgment." 14  We emphasized that "[t]he same presumption and burden apply when a  

                                                                                                                                   

party challenges a tribal court judgment that is entitled to full faith and credit."15  And  

                                                                         



finally, we reiterated the presumption that "decisions of tribal courts are sound unless the  

                                                                                                                                 

challenging party can show that the foreign judgment was constitutionally infirm."16  

                                                                                                                   



                     In summary, ICWA requires a superior court receiving a tribal court order  

                                                                                                                             



to determine whether the order was issued in an ICWA-defined child custodyproceeding  

                                                                                                                    



and, if it was, to follow ICWA  1911(d)'s full faith and credit mandate.  

                                                                                                  



           B.        Alaska CINA Rule 24  

                                                          



                     Adopted with Alaska CINA Rule 25 in October 2014, Rule 24 provides the  

                                                                                                                                 



procedure for registration and confirmation of tribal court orders  issued in ICWA- 

                                                                                                                         



defined  child  custody  proceedings.                      In  a  May  2012  memorandum,  the  court  rules  

                                                                                                                             



attorney explained that CINA Rules 24 and 25 were modeled on the Uniform Child  

                                                                                                                            



Custody JurisdictionandEnforcement Actbutincluded severaladjustments"to makethe  

                                                                                                                                 

rules simpler, more user-friendly, and better attuned to tribal court's needs."17  

                                                                                                          



           13       Id.  at   1011.  



           14       Id.  



           15       Id.  



           16       Id.  (quoting  Starr  v.  George,   175  P.3d  50,  56  (Alaska  2008)).   



           17        Memorandum  from  Laura  C.  Bottger,  Court  Rules  Attorney,  to  the  Justices  



of  the  Alaska  Supreme  Court  (May  24,  2012).    



                                                               -13-                                                          7431
  


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

                                  CINA Rule 24 contains subsections (a)-(j), which explain the applicability                                                                              

of the rule, the procedure a tribal court "may" follow in registering its tribal court order,                                                                                                                        18  



and the procedure the superior court must follow in receiving the order, in notifying the  

                                                                                                                                                                                                                  



relevant  parties  of  the  order,  and  in  confirming  registration  of  the  order.                                                                                                                   CINA  

                                                                                                                                                                                                       



Rule 24(a) provides that the rule applies "only to orders issued by the tribal court . . . in  

                                                                                                                                                                                                                 



a 'child custody proceeding' as defined by section 1903(1) of [ICWA], including . . . a  

                                                                                                                                                                                                                   



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

                                                                                                                                                                                                                



 'adoptive placement' other than an adoption decree."  

                                                                                                                                       



                                 NVB first filed the tribal court's April 13, 2017 order in the superior court  

                                                                                                                                                                                                            



child custody case on April 21 without including form CN-600 - "Request To Register  

                                                                                                                                                                                                    



Tribal  Court  ICWA  Custody  Order"  -  which  corresponds  to  CINA  Rule  24's  

                                                                                                                                                                                                             

                                                  19  However, before the superior court issued an order responding to  

registration process.                                                                                                                                                                                               

                               



the  tribal  court's  order,  NVB filed  form CN-600  in  a  separate  superior  court  case  

                                                                                                                                                                                                             



attempting to register the April 13 tribal court order.  The superior court issued a one- 

                                                                                                                                                                         



page order on July 24, responding to NVB's request to register the tribal court order.  

                                                                                                                                                                                                                           



The superior court acknowledged that NVB filed a notice of registration of a tribal court  

                                                                                                                                                                                                             



                 18              As explained below, ICWA                                               1911(d) mandatesthat statecourts                                                      must grant  



a tribal court's order, issued in an ICWA-defined child custody proceeding, full faith and                                                                                                                       

credit  provided   the   issuing   court   had   personal   and   subject   matter   jurisdiction   and  

rendered its judgment in accordance with minimum due process.                                                                                                       Simmonds, 329 P.3d                        

at 1011;             see also              CINA Rule 24, editors' notes.                                                While Rule 24 provides the procedure                                    

a tribal court  may follow in registering a tribal court order with a state court, the tribal                                                                                                     

court choosing not to follow Rule 24's procedure does not relieve a state court from                                                                                                         

giving effect to ICWA  1911(d)'s full faith and credit mandate.                                                                                                    



                 19               The record does not specify who filed NVB's April 13 order on April 21  

                                                                                                                                                                                                    

in the superior court child custody proceeding, but we assume that NVB filed the order  

                                                                                                                                                                                                            

because the record demonstrates that NVB subsequently filed a notice of registration on  

                                                                                                                                                                                                                   

June 6 and the tribal court's July 26 order on July 27, both in the superior court.  

                                                                                                                                                                                           



                                                                                                        -14-                                                                                                 7431
  


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

                                                                                                                                  

order regarding A.W., but concluded that the "tribal representative did not check one of  



                                                                                                             

the boxes pertaining to ICWA placements and termination of parental rights" and that  



                                                                                                                                  

the tribal court "order is invalid because . . . the NVB does not have any jurisdiction in  



                               

a custody dispute."  



                                                                                                                             

                     However, Rule 24(d)(1)-(2) provides that upon receipt of a tribal court  



                                                                                                                          

order, the superior court shall file the tribal court's order in the same manner as a foreign  



                                                                                                                     

judgment and distribute notice to the relevant parties.  Rule 24(f) explains:  



                                                                                                         

                     A person seeking to contest the validity of a registered order  

                                                                                                            

                     must request a hearing within 20 days after service of the  

                                                                                                  

                     notice. At that hearing, the court shall confirm the registered  

                                                                                                

                     order unless the person contesting registration establishes  

                     that:  



                                                                                                            

                               (1) the tribal court did not have jurisdiction over the  

                                                                                                        

                     parties or the child custody proceeding in which the tribal  

                                                           

                     child custody order was entered;  



                                                                                                            

                               (2) the child custody order sought to be registered has  

                                                                                          

                     been  vacated,  stayed,  or  modified  by  a  court   having  

                                                      

                    jurisdiction to do so; or  



                                                                                                 

                               (3) the person contesting registration was entitled to  

                                                                                               

                     notice,  but  notice  was  not  given  in  a  manner  reasonably  

                                                                                                            

                     calculated to give actual notice of the proceedings before the  

                                                                                                      

                     court that issued the order for which enforcement is sought,  

                                                                                                           

                     or if notice was given, the person contesting registration was  

                                                                     

                     not given an opportunity to be heard.  



                                                                                                                                

The superior court did not file the tribal court order nor did it provide notice to the  



                                                                                                                                

relevant parties as required by subsections (d)(1)-(2).   If the court had done so, the  



                                                                                                                            

parties would have had an opportunity to request a hearing where questions of the nature  



                                                                                                                              

of the tribal court's proceeding and the tribal court's jurisdiction over A.W. could have  



                                    

been formally raised.  



                                                               -15-                                                          7431
  


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

                                                                

          C.        Application To This Case  



                                                                                                                                 

                    Amanda and NVB argue in their briefing that the superior court failed to  



                                                                                                                                

conduct a full  faith  and credit analysis when it received  the tribal court's order  in  



                                                                                                                                 

April 2017.  Peter, Vera, and Waska respond that the superior court was not required to  



                                                                                                                         

grant full faith and credit to the tribal court order because it was not issued in an ICWA- 



                                                      

defined child custody proceeding.  



                                                                                                                               

                    The record demonstrates that NVB took emergency custody of A.W. and  



                                                                                                                                

placed her with her maternal grandmother in September 2015. The parties agree that the  



                                                                                                                

tribal court's 2015 proceeding when A.W. was placed with her maternal grandmother,  



                                                                                                                        

met the definition of a "foster care placement" under ICWA  1903(1). In early October  



                                                                                                                            

2015 NVB placed A.W. with Peter in Vera and Waska's home.  Vera and Waska argue  



                                                                                                                  

on appeal that the tribal court's CINA proceeding no longer met ICWA  1903(1)'s  



                                                                                                                                     

definition of an Indian child custody proceeding when A.W. was placed in their home.  



                                                                                                                      

                    In its November 2015 interim custody order, the superior court expressly  



                                                                                                                   

recognized that the tribe initiated a tribal CINA case under the tribal court's jurisdiction  



                                                                                                                               

when it took A.W. into its custody.  The superior court also recognized that "[NVB] has  



                                   

25 U.S.C. [] 1911(a) exclusive jurisdiction to care for its children."  But the superior  



                                                                                                                              

court went on to conclude that the tribal court "agreed to drop its case so that two  



                                                                                                                             

independent sovereigns do not each assert custody." As we previously explained, there  



                                                                                                              

is no evidence in the record that the tribal court agreed to drop its case.  



                                                                                                                              

                    In its finalcustody order, the superior court recognized that "NVBkept [its]  



                                                                                                                

case open, asserted custody of [A.W.], and set up visitation and . . . case plans for the  



                                                                                                                            

parents."  However, after recognizing that the tribal court's CINA case remained open,  



                                                                                                                         

the superior court failed to consider granting full faith and credit to the tribal court's  



                                                                                                                           

orders. The court instead stated at the end of its custody order that "[NVB] has no ability  



                                                                                                                              

to supersede or modify these conditions, or any other order of this Court, under any  



                                                               -16-                                                         7431
  


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

 circumstances. The parents are not bound by orders issued by [NVB]                                                                                                                  in this case only                         ."  



 (Emphasis in original.)                                       



                                    As discussed above, ICWA  1911(d) contains a federal mandate that a                                                                                                                         



 state court receiving a tribal court ICWA-defined child custody order must grant full                                                                                                                                    

                                                                                                                                                                                                      20  No party  

 faith and credit to the order, unless one of several narrow exceptions applies.                                                                                                                                       



 asserted - and the superior court did not find - that any of these exceptions applied.  

                                                                                                                                                                                                                                      



 On the record before us, we conclude that the superior court erred in ruling that the NVB  

                                                                                                                                                                                                                      



 tribal court lacked jurisdiction without following the procedures underlying the process  

                                                                                                                                                                                                                



 for giving full faith and credit to a tribal court order.  

                                                                                                                                            



                  D.                Miscellaneous Issues  

                                                                             



                                    Amanda also argues that the superior court had no jurisdiction to enter the  

                                                                                                                                                                                                                            



 final custody order in April 2016.  But Amanda did not object to the superior court's  

                                                                                                                                                                                                                 



jurisdiction during the custody proceedings, and she did not appeal the final custody  

                                                                                                                                                                                                               



 order at the time.  It is true that we often say that subject matter jurisdiction may be  

                                                                                                                                                                                                                             

 raised at any time.21  

                                                                                                                                        

                                                        But this issue is not as simple as the dissent implies.  A litigant is  



                                                                                                                                                                                                                       22  

                                                                                                                                                                                                                              

 not entitled to appeal a final judgment after the deadline for an appeal has passed. 



                                    After the deadline for an appeal, a litigant should first raise the jurisdiction  

                                                                                                                                                                                                      



 issue in the superior court by filing a motion for relief from judgment under Alaska Civil  

                                                                                                                                                                                                                       



                  20                25 U.S.C.  1911(d) (2018);                                               see also Simmonds                                 , 329 P.3d at 1011 (noting                       



 exceptions to full faith and credit include "situations where (1) the issuing court lacked                                                                                                                        

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

 court failed to render its judgment in accordance with minimum due process").                                                                                                                                     



                  21                See, e.g., Blaufuss v. Ball, 305 P.3d 281, 285 (Alaska 2013).  

                                                                                                                                                                                  



                  22               Id. ; see also Jackson v. Sey, 315 P.3d 674, 678 (Alaska 2013).  

                                                                                                                                                                                       



                                                                                                             -17-                                                                                                      7431
  


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

                                    23  

Rule 60(b)(4).                            Amanda may choose to file such a motion on remand to raise her                                                                                                  



arguments about the previous proceedings in the superior court.                                                                                                 This procedure will                     



ensure that all parties have a full opportunity to address the issue.                                                                             



                                Even if the jurisdiction issue was properly before us, it would not be as                                                                                                    



simple as the dissent implies. The ICWA sections at issue involve tribal jurisdiction over                                                                                                              

                                                                          24       "Child  custody  proceedings"  include  "foster  care  

"child   custody   proceedings."                                                                                                                                                                       

placement" that could include the tribal court orders in this case.25                                                                                                    But an award of  

                                                                                                                                                                                                             



custody  to  one  of  the  parents  in  a  divorce  proceeding  is  not  a  "child  custody  

                                                                                                                                                                                             

proceeding."26   Pursuant to ICWA, we have also held that this divorce exception applies  

                                                                                                                                                                                                 

to a custody contest between two unmarried parents,27 which could includethestatecourt  

                                                                                                                                                                                                      



custody proceedings in this case.  The grant of exclusive tribal jurisdiction over "child  

                                                                                                                                                                                       



custody proceedings" therefore does not deprive a state court of jurisdiction over a  

                                                                                                                                                                                                               



proceeding within the divorce exception because a divorce proceeding is not a "child  

                                                                                                                                                                                                  

                                                   28  We raise this issue not to resolve it here, but only to demonstrate  

custody proceeding."                                                                                                                                                                 

                     



that both parties should have a full opportunity to litigate this issue in the superior court.  

                                                                                                                                                                                                    



                                NVB also argues that the superior court erred when it denied its motion to  

                                                                                                                                                                                                              



intervene  in  August  2017.                                            The  superior  court  concluded  that  NVB's  request  was  

                                                                                                                                                                                                        



untimely and that the superior court lost jurisdiction when Amanda filed an appeal a few  

                                                                                                                                                                                                        



                23              Jackson, 315 P.3d at 678.
                           



                24              25 U.S.C.  1911(a).
  

                                                             



                25
             25 U.S.C.  1903(1)(i).        



                26              25 U.S.C.  1903(1)(iv).        



                27              John v. Baker                     , 982 P.2d 738, 746-47 (Alaska 1999).                                         



                28  

                                               

                                Id . at 747.  



                                                                                                    -18-                                                                                              7431
  


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

                                                                                                                                                                                                                                                                   

days after NVB's motion was filed. But we now return jurisdiction to the superior court.  



                                                                                                                                                                                                                           

NVB may  continue to have an interest in participating in any remand proceedings  



                                                                                                                                                                                                                                                        

concerning  the  validity  of  its  tribal  court  orders.                                                                                                     Therefore,  NVB  may  renew  its  



                                                                                                                                                                                                                                                 

intervention request upon remand, and the superior court should reconsider the issue  



                                                                                                                     

while conducting a full faith and credit analysis.  



V.                  CONCLUSION  



                                        The superior court's orders denying recognition of the tribal court orders                                                                                                                            



and denying Amanda's motion to modify custody are VACATED and this matter is                                                                                                                                                                               



REMANDED to the superior court for further proceedings consistent with this opinion.                                                                                                                                                    



                                                                                                                          -19-                                                                                                                    7431
  


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

STOWERS, Justice, dissenting.             



                           Conflicting    decrees    from    tribal    court    and    state    court  

                          undermine the authority of each sovereign, produce chaos in                                                         

                          the lives of parents, and expose children to discontinuity and                                                   

                          prolonged instability.                     [1]  



                                                                                 * * *  

                                                                                        



                           State-court  jurisdiction  plainly  would  interfere  with  the  

                                                                                                                                          

                           [Tribe's] powers of self-government . . . .  It would subject a  

                                                                                                                                                

                           dispute arising on the reservation among reservation Indians  

                                                                                                                                   

                          to  a  forum  other  than  the  one  they  have  established  for  

                                                                                                                                           

                          themselves.  As the present record illustrates, it would create  

                                                                                                                                      

                           a substantial risk of conflicting adjudications affecting the  

                                                                                                                                           

                           custody of the child and would cause a corresponding decline  

                                                                                                                                    

                                                                                                 [  ]  

                          in the authority of the Tribal Court. 2 

                                                                                     



I.	          The Native Village Of Barrow Has Exclusive Jurisdiction Over This Indian  

                                                                                                                                                              

             Child Custody Matter.  

                                              



                          I begin my analysis with the black letter law. In general, jurisdiction is "[a]  

                                                                                                                                                                     

court's  power  to  decide  a  case."3                                     Exclusive  jurisdiction  is  "[a]  court's  power  to  

                                                                                                                                                        

                                                                                                                        4   Exclusive jurisdiction is  

adjudicate an action . . . to the exclusion of all other courts." 

                                                                                                                                                                         



to be contrasted with concurrent jurisdiction, which is "[j]urisdiction that might be  

                                                                                                                                                         



             1            BARBARA  ANN  ATWOOD, CHILDREN,T                                            RIBES, AND  STATES: A                      DOPTIONAND   



CUSTODY CONFLICTS OVER AMERICAN INDIAN CHILDREN  59 (2010).                                                                                

                                                                                              



             2  

                                                                                                                                                           

                          Fisher v. Dist. Court, 424 U.S. 382, 387-88 (1976) (footnote omitted)  

                                                                                                                                                         

(holding state court lacked subject matter jurisdiction over adoption petition involving  

Indian child because tribal court had exclusive jurisdiction).                                



             3            Jurisdiction, BLACK 'S  LAW  DICTIONARY  (11th ed. 2019).                                                           

                                                     



             4  

                                                                                                    

                          Exclusive jurisdiction, id. (emphasis added).  



                                                                                  -20-	                                                                           7431
  


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

                                                                                                                                                            5  

 exercised simultaneously by more than one court over the same subject matter."                                                                                 Subject  



matter jurisdiction is "[j]urisdiction over the nature of the case and the type of relief                                                                           

 sought."6  



                           The Indian Child Welfare Act (ICWA) grants tribes exclusive jurisdiction                                                     



                                                                                                                             7  

 over certain child custody proceedings involving Indian children                                                                                                  

                                                                                                                               and provides that "[a]ny  



                                                                                                                                                                      

 . . . tribe which became subject to State jurisdiction . . . may reassume jurisdiction over  



                                                         8  

                                                                                                                                                                         

 child custody proceedings."                                 Before a tribe can do so, "such tribe shall present to the  



                                                                                                                                                                      

 Secretary [of the Department of the Interior] for approval a petition to reassume such  



                                                                                                                                                   9  

                                                                                                                                                                         

jurisdiction which includes a suitable plan to exercise such jurisdiction."                                                                            In 1999 the  



                                                                                                                                                                

Native Village of Barrow (the Tribe) successfully petitioned the Secretary of the Interior  



                                                                                                                                                   10  

                                                                                                                                                        

to reassume exclusive jurisdiction over Indian child custody proceedings.                                                                                 



                           "ICWAcreates limitations onstates' jurisdictionover ICWA-defined child  

                                                                                                                                                                      

 custody proceedings, not limitations on tribes' jurisdiction over those proceedings."11  

                                                                                                                                                                                 



Four proceedings meet the definition of a "child custody proceeding" under ICWA:  

                                                                                                                                                                                 



 (1)  "foster  care  placement,"  (2)  "termination  of  parental  rights,"  (3)  "preadoptive  

                                                                                                                                                    



              5             Concurrent  jurisdiction ,  id.  



              6            Subject-matter  jurisdiction ,  id.  



              7            25  U.S.C.     1911(a)  (2018).  



              8            Id.     1918(a).  



              9            Id.  



              10           Approval   of   Petition   for   Reassumption   of   Exclusive   Jurisdiction  by  the  



Native  Village  of  Barrow,  64  Fed.  Reg.  36,391  (July  6,   1999).  



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



                                                                                   -21-                                                                              7431
  


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

                                                                                          12  

placement," and (4) "adoptive placement."                                                      A "foster care placement" is defined as                                         



"any action removing an Indian child from its parent . . . for temporary placement in a                           



foster   home   or  institution   or   the   home   of   a   guardian   or   conservator   where   the  



parent . . . cannot have the child returned upon demand, but where parental rights have                                                                                   

                                            13  The Tribe therefore clearly possesses exclusive jurisdiction over  

not been terminated."                                                                                                                                                      



Indian child custody proceedings, including tribal CINA cases involving foster care  

                                                                                                                                                                           



placements.  



                            Here, when the tribal court removed A.W. from her mother's custody and  

                                                                                                                                                                             



placed her with her grandmother, this was a foster care placement. At no time during the  

                                                                                                                                                                              



tribal court CINA proceeding - during which time A.W. was in the Tribe's custody -  

                                                                                                                                                                               



could either parent demand A.W. be returned to their custody.   The superior court,  

                                                                                                                                                                       

though  acknowledging  the  Tribe's  exclusive  jurisdiction  over  the  Native  child,14  

                                                                                                                                                                    



repeatedly refused to give effect to the Tribe's exclusive jurisdiction and declared that  

                                                        



the tribal court's custody orders were unenforceable in state court.  This resulted in the  

                                                                                                                                                                              



superior court issuing inconsistent and conflicting custody orders from those issued by  

                                                                                                                                                                               



the tribal court.  

                     



II.           We Must Address Subject Matter Jurisdiction.  

                                                                                           



                            As early as 1868 the Supreme Court held:  "Without jurisdiction the court  

                                                                                                                                                                         



cannot proceed at all in any cause.  Jurisdiction is power to declare the law, and when  

                                  



it ceases to exist, the only function remaining to the court is that of announcing the fact  

                                                                                                                                                                            



              12            25  U.S.C.     1903(1).  



              13           Id.     1903(1)(I).   



              14            The   superior court  recognized  that  "[t]he   [Tribe]  has  25  U.S.C.   1911(a)  



exclusive  jurisdiction  to  care  for  its  children."  



                                                                                      -22-                                                                               7431
  


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

                                                                                          15  

 and dismissing the cause."                                                                      In 1872 the Supreme Court held:                                                                                     



                                                                    Usually where a court has no jurisdiction of a case, the                                                                                                                 

                                             correct practice is to dismiss the suit, but a different rule                                                                                                                              

                                             necessarily prevails in an appellate court in cases where the                          

                                              subordinate   court   was   without   jurisdiction  and   has   given  

                                            judgment or decree for the plaintiff or improperly decreed                                                                                                                     

                                             affirmative relief to a claimant.                                                                         In such a case the judgment                                     

                                             or decree in the court below must be reversed, else the party                                                                                                                           

                                             which   prevailed   there   would   have   the   benefit   of   such  

                                            judgment or decree, though rendered by a court which had no                                                                                                                                        

                                             authority to hear and determine the matter in controversy.                                                                                                                                       [16]
   



And in 1884 the Court was presented with an appeal from the trial court and determined
                                                                                                                                                                       



that it had no jurisdiction, explaining:                                                                                        "An examination of the record . . . discloses that
                                                                                                    



the [trial] court had no jurisdiction to try the action, and as, for this reason, we are
                                                                                                                                                                                               



 constrained to reverse the judgment, we have not deemed it within our province to
                                                                                                                                                                                                         

                                                                                                                                                                                         17  The Court continued, stating
  

 consider any other questions involved in [the appeal]."                                                                                                                                                                                                                     



that "the rule . . . is inflexible and without exception which requires this court, of its own
  

                                                                                                                                                                                                                                                                                     



motion, to deny its own jurisdiction, and, in the exercise of its appellate power, that of
  

                                                                                                                                                                                                                                                                                            



 all  other  courts  of  the  United  States,  in  all  cases  where  such  jurisdiction  does  not
  

                                                                                                                                                                                                                                                                                       

 affirmatively appear."18                                                           The Court then announced the fundamental, threshold duty of
  

                                                                                                                                                                                                                                                                                            



                       15                    Ex parte McCardle                                               , 74 U.S. (7 Wall.) 506, 514 (1868);                                                                                accord Ruhrgas AG                                       



v.  Marathon Oil Co.                                                 , 526 U.S. 574, 577 (1999);                                                                 Steel Co. v. Citizens for a Better Env't                                                                                         ,  

 523 U.S. 83, 94 (1998).                               



                       16                     United States v. Huckabee, 83 U.S. (16 Wall.) 414, 435-36 (1872).  

                                                                                                                                                                                                                                                      



                       17                    Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 381 (1884); see also  

                                                                                                                                                                                                                                                                                     

Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908) ("We do not deem  

                                                                                                                                                                                                                                                                                 

 it necessary, however, to consider either of these questions [raised on appeal], because,  

                                                                                                                                                                                                                                                                      

 in our opinion, the court below was without jurisdiction of the cause.").  

                                                                                                                                                                                                                    



                       18                    Mansfield, 111 U.S. at 382.  

                                                                                                                           



                                                                                                                                           -23-                                                                                                                                    7431
  


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

the appellate court:  "On every . . . appeal the first and fundamental question is that of     



jurisdiction, first, of this court, and then of the court from which the record comes.                                                                This  



 question   the court is bound to                           ask   and   answer   for   itself,   even   when   not otherwise   

 suggested . . . ."           19  



                         Once  the  tribal  court  exercised  its  exclusive  Indian  child  custody  

                                                                                                                                              



jurisdiction over its Indian child custody case, the superior court was divested entirely  

                                                                                                                                



                                                                                                                                                    20  

 of its child custody subject matter jurisdiction and was required to dismiss the case;                                                                any  

                                                                                                                                                        

 order issued thereafter by the superior court was void.21   Moreover, the Alaska Supreme  

                                                                                                                                               



             19         Id .;  see also Mottley, 211 U.S. at 152 ("Neither party has questioned that                       



jurisdiction, but it is the duty of this court to see to it that the jurisdiction of the circuit                                                   

 court . . . is not exceeded.").             



             20          Cf. 25 C.F.R.  21.110 (2020) ("The court in any voluntary or involuntary  

                                                                                                                                         

 child-custody proceeding involving an Indian child must determine the residence and  

                                                                                                                                                        

 domicile of the Indian child. If either the residence or domicile is on a reservation where  

                                                                                                                                                    

the Tribe exercises exclusive jurisdiction over child-custody proceedings, the State court  

                                                                                                                                                      

must expeditiously notify the Tribal court of the pending dismissal based on the Tribe's  

                                                                                                                                                 

 exclusive jurisdiction[] [and] dismiss the State-court child-custody proceeding . . . .").  

                                                                                                                                                                

The Native Village of Barrow is not a reservation. But the Department of the Interior has  

                                                                                                                                                         

 approved the Tribe's petition to reassume exclusive jurisdiction pursuant to ICWA over  

                                                                                                                                                      

Indian children "who reside or are domiciled within the Native Village of Barrow,"  

                                                                                                                                                                

Approval of Petition for Reassumption of Exclusive Jurisdiction by the Native Village  

                                                                                                                                                 

 of  Barrow,  64  Fed.  Reg.  36,391  (July  6,  1999),  even  though  the  ICWA  exclusive  

                                                                                                                                            

jurisdiction  provision  gives  tribes  exclusive  jurisdiction  "over  any  child  custody  

                                                                                                                                               

proceeding involving an Indian child who resides or is domiciled within the reservation  

                                                                                                                                          

 of such tribe."  25 U.S.C.  1911(a).  Although neither party has argued the issue, this  

                                                                                                                 

 suggests that 25 C.F.R.  21.110 would also apply to children domiciled in the Native  

                                                                                                   

Village of Barrow.  

                                     



             21          See Holt v. Powell, 420 P.2d 468, 471 (Alaska 1966) ("A judgment is void  

                                                                                                                                                       

where the state in which the judgment was rendered had no jurisdiction to subject the  

                                                                                                                                                         

parties or  the subject matter  to  its control .  .  .  ." (citing  RESTATEMENT  (FIRST)   OF  

                                                                                                             

JUDGMENTS    5 (A                  M. L    AW   INST . 1942)));              see also Leisnoi, Inc. v. Merdes & Merdes,                       

                                                                                                                                     (continued...)  



                                                                           -24-                                                                      7431
  


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

                                                                                                                                                                             22  

 Court also has no jurisdiction, except to determine our own jurisdiction.                                                                                                          Once we   



 conclude that the Tribe possesses exclusive jurisdiction, our only recourse is to declare                                                                                                



 that the Alaska courts have                                         no  jurisdiction,   reverse the superior                                                 court's order,                     and  



remand the case with instructions to dismiss.                                          



 III.           The Mother Does Not Need To File An Alaska Civil Rule 60(b)(4) Motion.                                                                                               



                                This   court   ignores   the   jurisdictional   elephant   in   the   room,   instead  



 suggesting that the mother may seek to challenge the superior court's jurisdiction on                                                                                                              



                                                                                                                                       23  

remand by filing an Alaska Civil Rule 60(b)(4) motion.                                                                                                                                         

                                                                                                                                              While it is true that Rule  



                                                                                                                                                                                                  

 60(b)(4) allows  a  party to challenge a court's jurisdiction after final judgment, the  



                                                                                                                                                                                                

 question of jurisdiction may be raised at any time in a civil action, even for the first time  



                        24  

                                                                                                                                                                                                  

                              Here the question of the court's jurisdiction has been raised on appeal and  

 on appeal. 



                                                                                                                                                                                         

 is squarely before us, so Rule 60(b)(4) has no place in this procedural posture.  



                                                                                                                                                         

                                The court dismisses the mother's argument that the superior court lacked  



                                                                                                                                                                                                   

jurisdiction to enter the final custody order in April 2016, concluding that she "did not  



                21(...continued)  



                                                                                                                                                                                                    

P.C., 307 P.3d 879, 891 (Alaska 2013) (holding a judgment is void if the court had no  

                                   

 subject matter jurisdiction).  



                22              RESTATEMENT  (SECOND) OF  JUDGMENTS  11 cmt. c (A                                                                          M.L       AW  INST. 1982).   



                23              Op. at 17-18; Alaska Rule of Civil Procedure 60(b)(4) provides that "[o]n                                                                                     



 motion and upon such terms as are just, the court may relieve a party . . . from a final                                                                                                     

judgment, order, or proceeding for the following reasons: . . . (4) the judgment is void."  

                                                                                                                                                                                            



                24             Hawkins v. Attatayuk, 322 P.3d 891, 894-95 (Alaska 2014) ("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))); see also Kontrick v.  

                                                                                                                                                            

Ryan, 540 U.S. 443, 455 (2004) ("A litigant generally may raise a court's lack of subject- 

                                                                                                                                                                                        

 matter jurisdiction at any time in the same civil action, even initially at the highest  

                                                                                                                                                                                         

 appellate instance.").  

                       



                                                                                                 -25-                                                                                          7431
  


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

 object to the superior court's jurisdiction during the custody proceedings, and she did not                                                          



                                                                           25  

 appeal the final custody order at the time."                                                                                                   

                                                                                While acknowledging "that subject matter  

                                                                            26                                                                     27  in  

                                                                                  the  court  relies  on  Jackson  v.  Sey                             

                                                                                                                                            

                                                                 

jurisdiction  may  be  raised  at  any  time," 



 concluding  that  "[a]fter  the  deadline  for  an  appeal,  a  litigant  should  first  raise  the  

                                                                                                                                                     



jurisdiction issue in the superior court by filing a motion for relief from judgment under  

                                                                                                                                                 

Alaska Civil Rule 60(b)(4)."28  

                                  



                        In Jackson  we declined to address a party's argument that his "divorce  

                                                                                                                                            



 decree [was] void because of his lack of participation in the . . . evidentiary hearing,"  

                                                                                                                                           



instead requiring him to first raise the argument before the superior court through a  

                                                                                                                                                         

Rule 60(b)(4) motion.29   We cited Juelfs v. Gough30  for the proposition that a "party was  

                                                                                                                                                     

not entitled to raise grounds for Rule 60(b) relief for the first time on appeal."31   In Juelfs  

                                                                                                                                                 



we held that a party could not argue the distribution of money in a dissolution decree was  

                                                                                                                                                     



 erroneous on appeal given that she did not first bring a Rule 60(b) motion before the  

                                                                                                                                                      

                          32   In neither of these cases was the party challenging the superior court's  

 superior court.                                                                                                                               

                 



 subject matter jurisdiction.  This court undercuts the well-established rule that subject  

                                                                                                                                               



matter jurisdiction is a fundamental, threshold issue that can be raised at any time,  

                                                                                                                                                  



            25          Op. at 17.
     



            26  

                                     

                        Op. at 17.
  



            27  

                                                                 

                        315 P.3d 674 (Alaska 2013).
  



            28          Op. at 17-18.
  

                                     



            29  

                                              

                        315 P.3d at 677-78.  



            30  

                                                                        

                        41 P.3d 593, 598 (Alaska 2002).  



            31  

                                                                       

                        Jackson, 315 P.3d at 678 n.12.  



            32  

                                            

                        41 P.3d at 598.  



                                                                          -26-                                                                    7431
  


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

                                                                                 33  

 including for the first time on appeal,                                              by extending our holdings in                                    Jackson  and  Juelfs  



                                                                                                                                                         34  

to Rule 60(b)(4) motions based on lack of subject matter jurisdiction.                                                                                         



                              The  mother  timely  filed  the  appeal  that  is  before  us  and  raised  a  

                                                                                                                                                                                            



jurisdictional argument in this appeal; as shown above, we have a corresponding duty  

                                                                                                                                                                                      



to address this threshold jurisdictional question.  The Tribe possessed exclusive Indian  

                                                                                                                                                                                 



 child custody jurisdiction. The superior court therefore had no jurisdiction, nor does this  

                                                                                                                                                                                        



 court,  and  we  must  reverse  the  superior  court's  orders  and  remand  the  case  with  

                                                                                                                                                                                     



 instructions to dismiss.  I dissent from the court's opinion.  

                                                                                                                



               33             Hawkins   v.   Attatayuk,   322   P.3d   891,   894-95   (Alaska   2014);   see   also  



Kontrick v. Ryan                      , 540 U.S. 443, 455 (2004).                  



               34             Op. at 17-18.  

                                             



                                                                                            -27-                                                                                    7431
  

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