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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Adoption of Erin G. (08/04/2006) sp-6032
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| IN THE MATTER OF THE | ) |
| ADOPTION OF | ) Supreme Court No. S- 11929 |
| ) | |
| ERIN G., | ) Superior Court No. 4FA-02-0057 PR/A |
| ) | |
| A Minor Child. | ) O P I N I O N |
| ) | |
No.
6032 - August 4, 2006
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Richard D. Savell, Judge.
Appearances: Kenneth C. Kirk, Kenneth Kirk &
Associates, Anchorage, for Appellant David L.
Daniel L. Callahan, Callahan Law Office,
Fairbanks, for Appellees Christopher Grant
and Doris Grant.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
EASTAUGH, Justice.
BRYNER, Justice, dissenting.
I. INTRODUCTION
David L. is the putative father of Erin G. Invoking
the Indian Child Welfare Act (ICWA), he sought to set aside the
decree granting the petition of Christopher and Doris Grant to
adopt Erin. The superior court held that AS 25.23.140(b),
Alaskas one-year statute of limitations for challenging adoption
decrees, barred Davids petition. He appeals. Because it appears
that Congress intended that state statutes of limitations would
generally apply to ICWA challenges to placement decrees, we
affirm.
II. FACTS AND PROCEEDINGS
Erin G. was born in 2001 to Joanne A., who was
unmarried and ill with terminal cancer.1 Erin is an Indian child
within the meaning of the Indian Child Welfare Act (ICWA).2
Before her death, Joanne sought to permanently place Erin with
appellees Christopher and Doris Grant. The Grants petitioned to
adopt Erin in late January 2002. In February Joanne consented to
termination of her parental rights. She also identified appellant
David L. as the father.3
The Grants attorney formally notified David of the
adoption petition, and filed a copy of the notice with the
superior court, in March 2002. David obtained court-appointed
counsel and, through counsel, objected to the proposed adoption.
The Grants moved for summary judgment against David,
arguing that Davids consent to the adoption was not necessary
under either state law or ICWA because David had not properly
acknowledged paternity of Erin. In opposing the Grants motion,
David submitted several signed but unsworn statements in which he
appeared to assert that he was Erins father.
On August 12, 2002 the superior court granted summary
judgment to the Grants. It ruled that because David had not
produced a sworn statement acknowledging paternity or the results
of a blood test, he was not a parent as defined by state law or
ICWA, and therefore could not object to the adoption.
On September 4, 2002 the court entered the adoption
decree and the Grants assumed legal custody of Erin. Meanwhile,
David appealed the grant of summary judgment against him. He was
dissatisfied with his court-appointed attorney and requested a
new attorney for the appeal. The superior court granted his
request, but the new attorney did not pursue Davids appeal, and
on April 21, 2003 we dismissed that appeal under Alaska Appellate
Rule 511.5 for lack of prosecution. David continued to file
motions and write letters to the superior court regarding his
case. In late January 2004 the superior court appointed a third
attorney, Kenneth Kirk, to represent David regarding any further
post decree motions or appeals in this matter. In March 2004 we
denied Attorney Kirks motion to reinstate Davids appeal.
David continued filing pro se motions with the superior
court throughout the remainder of 2004. On October 21, 2004
David filed a Petition to Invalidate Adoption, one of the motions
at issue in this appeal. His petition claimed that the Grants
adoption of Erin violated various provisions of ICWA. On
December 7, 2004 the superior court summarily denied Davids
petition. David then filed a Motion Pursuant to Petition to
Invalidate Illegal Adoption in which he again requested the
invalidation of the adoption and also sought a grand jury
indictment of the Grants for kidnapping. On March 1, 2005 the
superior court issued an opinion thoroughly addressing and
rejecting all of Davids arguments regarding the adoption.
In a letter of March 9 David asked the superior court
to appoint him an attorney to appeal the courts decision. The
court apparently took no action on this request because David
submitted a second request on April 15. On April 27 the superior
court reappointed Attorney Kirk, who then filed a notice of
appeal in this court and a motion to accept late filing on May 9.
The Grants and the Guardian ad Litem both opposed that motion.
This court, by order of an individual justice, granted the motion
to accept the late filing.
III. DISCUSSION
A. Standard of Review
We apply our independent judgment to resolve questions
of statutory interpretation, adopting the rule of law that is
most persuasive in light of precedent, reason, and policy.4 We
liberally construe statutes enacted for the benefit of Indians,
resolving all doubts . . . in favor of the Indians.5
B. Davids Failure To Comply with the Deadline for Filing
Appeals Is Excused.
The Grants argue that Davids appeal was untimely.6
They note that the superior court distributed its final order on
March 3, 2005, but that David did not file his notice of appeal
until May 9, 2005. Alaska Appellate Rule 218(d) requires that a
notice of appeal in this class of cases be filed within fifteen
days after the date shown on the clerks certificate of
distribution of the order or judgment. But the time limit for
filing a notice of appeal is not jurisdictional and the rule may
be relaxed or dispensed with to avoid surprise or injustice.7
Although Davids appeal was late, the record indicates
that he made a good-faith effort to appeal by the deadline. His
March 9, 2005 letter to the superior court indicated his desire
to appeal and asked the court to appoint him counsel. He wrote
the court again on April 15, expressing worry that his time to
appeal would expire if the court did not act on his request. We
have held that pro se litigants who make good faith efforts to
comply with court rules should not be held to strict procedural
requirements.8 David may technically have been represented by
Kenneth Kirk during this period, but neither David nor Kirk
believed Kirks representation was ongoing.9 Once Kirk was
reappointed as Davids attorney, he filed this appeal within
twelve days.
Because of Davids good-faith attempt to file his appeal
within the time limit and confusion about whether Kirk was still
his appointed counsel in March 2005, Davids failure to comply
with the time limits in Appellate Rule 218(d) is excused.
C. Alaskas One-Year Statute of Limitations on Adoption
Challenges Bars Davids ICWA Claims.
Per AS 25.23.140(b), a challenge to an adoption decree
must be filed within one year after the decree is issued.10 The
superior court held that this one-year limitation barred Davids
petition to invalidate the adoption decree. David argues that
state statutes of limitations should not apply to adoption
challenges brought under ICWA, a federal statute.
Section 1914 of ICWA allows any parent or Indian
custodian from whose custody [an Indian] child was removed to
petition any court of competent jurisdiction to invalidate such
action upon a showing that such action violated any provision of
sections 1911, 1912 and 1913 of this title.11 ICWA does not
contain a generally applicable statute of limitations and 1914
contains no time limits.12 David maintains that because ICWA
contains no general statute of limitations, challenges may be
brought under 1914 at any time.
1. In re Adoption of T.N.F. does not have stare
decisis effect.
We have previously considered whether AS 25.23.140(b),
Alaskas one-year limitation on adoption challenges, applies to
claims brought under 1914 of ICWA. In In re Adoption of T.N.F.,
two of the four participating justices agreed that Alaskas one-
year statute of limitations applied,13 one justice concurred in
the result without discussing the merits of the statute of
limitations question,14 and one justice dissented, arguing that
1914 allows at least some ICWA claims to be brought at any time.15
The parties here dispute T.N.F.s stare decisis effect.
Stare decisis compels us to give precedential value to our prior
holdings.16 David argues that because T.N.F. lacks a majority
opinion it should not be given any stare decisis effect. The
Grants counter that the pluralitys opinion should be given stare
decisis effect because a majority of participating justices
agreed with the result.
We agree with Davids conclusion that T.N.F. does not
have stare decisis effect. A majority of the participating
justices did not agree on a rationale for deciding T.N.F.
Generally, [i]f a majority of the court agreed on a decision in
the case, but less than a majority could agree on the reasoning
for that decision, the decision has no stare decisis effect.17 In
some cases, a holding can be extracted from an opinion without a
majority opinion. The United States Supreme Court has held that
[w]hen a fragmented court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the
holding of the court may be viewed as that position taken by
those Members who concurred in the judgment on the narrowest
grounds.18 But one federal court has noted that this principle is
inapplicable if there is no obvious narrower opinion or common
denominator of the Courts reasoning.19
T.N.F. contains no narrower reasoning agreed upon by
all three affirming justices. The concurring justice expressed
no opinion on the statute of limitations issue, and in agreeing
with the result, he reasoned that ICWA did not give the plaintiff
standing to sue.20 The two-justice plurality specifically
disagreed with the concurring justice on the standing issue.21
Because a majority of the participating justices in T.N.F. did
not agree on any one ground for affirmance, we do not accord
T.N.F. stare decisis effect.22
2. Alaskas one-year statute of limitations applies.
Even though T.N.F. is not binding precedent, we nevertheless
agree with the reasoning of the plurality opinion on the
limitations issues.
Congress did not include a generally applicable statute
of limitations in ICWA. It specified a two-year statute of
limitations for one class of ICWA claims, those brought under
1913(d). The absence of a general statute of limitations is a
void which is commonplace in federal statutory law.23 The United
States Supreme Court has held that [w]hen Congress has not
established a time limitation for a federal cause of action, the
settled practice has been to adopt a local time limitation as
federal law if it is not inconsistent with federal law or policy
to do so.24 Apart from T.N.F., no reported case has discussed the
issue of what statute of limitations applies for claims brought
under 1914 of ICWA.25 But courts have borrowed state statutes of
limitations in considering the timeliness of claims under many
federal statutes, including the Employee Retirement Income
Security Act,26 the False Claims Act,27 the Worker Adjustment and
Retraining Notification Act,28 the Labor-Management Reporting and
Disclosure Act,29 42 U.S.C. 1983,30 the Individuals with
Disabilities Education Act,31 and the Labor Management Relations
Act.32
David asks us to hold that no limitations period
whatsoever applies to his 1914 challenge to the adoption decree.
But he cites no case in which a court has held that no statute of
limitations applies to a federal statutory claim. Although
courts have occasionally suggested that certain federal causes of
action have no applicable statutes of limitation, such causes of
action appear to be rare.33 Courts, reasoning that the proposed
state statute of limitations would be an unsatisfactory vehicle[]
for the enforcement of federal law, do sometimes hold that a
particular state statute of limitations should not be applied to
a given federal claim.34 But in such cases none of which
involves ICWA courts have either borrowed a different state
statute of limitations,35 or they have used timeliness rules drawn
from federal law either express limitations periods from related
federal statutes, or such alternatives as laches.36
Applying Alaskas one-year statute of limitations for
challenging adoption decrees to ICWA adoption challenges not
based on fraud or duress does not conflict with federal law or
policy. As noted above, Congress regularly creates private
rights of action without statutes of limitations. It is
reasonable to assume that Congresss enactment of ICWA without a
general statute of limitations was informed by the settled
practice of borrowing statutes of limitations from state law.37
If Congress had intended to exempt claims under 1914 from state
statutes of limitations, it could have easily done so with
explicit statutory language. And indeed, if Congress had
intended that 1914 claims challenging placements, including
adoptions, would be subject to no time limitations despite the
disruptive consequences of delay, one would expect some
indication of that intent in ICWAs legislative history. We are
aware of no such indication of legislative intent.
Moreover, 1913(d) indicates that Congress must have
intended to allow state limitations periods to govern ICWA
claims. Congress there adopted a two-year federal statute of
limitations for claims that a parents relinquishment of rights
was obtained through fraud or duress, unless state law provides
for a longer limitations period.38 Subsection 1913(d)
demonstrates that Congress was aware of, and endorsed, the
practice of borrowing state statutes of limitations. It suggests
that the drafters understood that state limitations periods would
govern ICWA challenges unless Congress specified otherwise.
Congress did so only as to claims brought under 1913(d).
Obtaining a parents consent to termination by fraud or
duress is arguably one of the most egregious placement practices
addressed by ICWA. Congresss decision to adopt a minimum
limitations period only for fraud and duress claims suggests that
it was comfortable with the possibility that shorter state
limitations periods would govern claims brought under other ICWA
provisions. Conversely, it is unlikely that Congress would have
limited the time for bringing claims under 1913(d) if it
intended that other 1914 claims would be subject to no time
limits.
Also, we agree with the reasoning of the T.N.F.
plurality that 1913(d) implicitly recognizes the important
policy that at some point adoptions must become final.39 Although
a primary purpose of ICWA is to promote the stability and
security of Indian tribes and families by preventing the
unwarranted breakup of Indian families, ICWA is also intended to
protect the best interests of Indian children.40 As we noted in
another case:
[a]doptive custody results in the rapid
development of lasting and powerful
psychological ties between adoptive parents
and children, especially young children.
Once formed, these bonds can seldom be
severed without irreparable damage to the
childs well-being.[41]
ICWA is remedial legislation and must be liberally construed in
favor of Indians,42 but we do not think that an interpretation of
ICWA that would completely disregard Indian childrens interests
in finality and stability would be consistent with Congresss
intent in enacting the statute. We therefore hold that Alaskas
one-year statute of limitations provides an appropriate balance
between the important federal rights of Indian tribes and
families and the best interests of adopted children.
David argues that 1921 of ICWA prohibits us from
applying any statute of limitations to ICWA claims. Section 1921
states:
In any case where State or Federal law
applicable to a child custody proceeding
under State or Federal law provides a higher
standard of protection to the rights of the
parent or Indian custodian of an Indian child
than the rights provided under this
subchapter, the State or Federal court shall
apply the State or Federal standard.[43]
David contends that because ICWA provides no statute of
limitations, ICWA is a Federal law . . . provid[ing] a higher
standard of protection to the rights of the parent and should
therefore trump Alaskas statute of limitations.
Section 1921, on its face, does not support Davids
interpretation. That provision requires that State or Federal
law prevail if it provides more protection than the rights
provided under this subchapter. Because the statute requires a
comparison between State or Federal law and the rights provided
under this subchapter, State or Federal law can only mean a state
or federal law other than ICWA. Furthermore, a special provision
is not necessary to ensure that a federal statute of limitations
or, as alleged in this case, a purported federal policy that
lawsuits be allowed at any time prevails over a conflicting
state statute of limitations. Basic federal preemption
principles require the same result.44 Davids argument fails
because he cannot show that Congresss silence on the limitations
issue indicates an intention to allow ICWA challenges at any
time. Section 1921 does not shed any additional light on this
question.
Alaska Statute 25.23.140(b) provides that, subject to
the disposition of an appeal, an adoption cannot be questioned
upon the expiration of one year after the decree is issued. The
superior court issued the adoption decree on September 6, 2002.45
Per AS 25.23.140(b), any challenge to the adoption filed after
September 4, 2003 was untimely. Davids October 21, 2004 petition
to invalidate Erins adoption was therefore time-barred.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of
the superior court denying Davids petition to invalidate the
adoption.
BRYNER, Justice, dissenting.
For the reasons expressed by Justice Rabinowitz in his
dissenting opinion in In re Adoption of T.N.F.,1 I dissent from
the courts decision that Davids challenge under ICWA 1914 is
governed by Alaskas statute of limitations. In my view, Justice
Rabinowitzs dissent bears repetition here because it persuasively
responds to the interpretation of congressional intent adopted by
todays opinion:
Given the unambiguous text of 1913(a),
I conclude Congress intended that any consent
obtained in violation of the strict
procedural safeguards governing termination
of parental rights was to have no force or
effect. It follows that an adoption based on
an invalid consent is void ab initio, and
that a petition to vacate such a void decree
can, pursuant to 1914, be filed at any
time.
Admittedly, the factual circumstances of
this case are highly unusual and there are
significant considerations which militate
against disturbing any parent-adoptive child
relationship. Nevertheless, I believe that
my reading of 1913(a) and 1914 is
consonant with Congress overall intent in
enacting the Indian Child Welfare Act and
with the specific intent reflected in the
procedural safeguards provided in 1913(a).
It is apparent that the provisions of
1913(a) were designed to increase the
likelihood that a consent to termination of
parental rights was in fact voluntarily
given. If, but only if, ICWAs procedures are
followed does the Act achieve its purpose to
establish minimum Federal standards for the
removal of Indian children from their
families. 25 U.S.C. 1902 (Supp. 1987).
If, but only if, such procedures have been
followed should a parent of an Indian child
need allege fraud, duress, or other
misconduct.
I cannot agree that the absence of fraud
or duress under 1913(d) impliedly limits the
protections of 1913(a). 1913(d) delimits
minimum not maximum protection; it expands
not contracts the rights of Indian parents.
The majority instead construes the narrow
provision of 1913(d) to restrict the broad
scope of ICWA and hobble its purpose.1
__________________________________
1 The legislative history of ICWA
discloses that Congress was aware of the
following considerations:
The decision to take Indian
children from their natural homes
is, in most cases, carried out
without due process of law. . . .
Many cases do not go through
an adjudicatory process at all,
since the voluntary waiver of
parental rights is a device widely
employed by social workers to gain
custody of children. Because of
the availability of waivers and
because a great number of Indian
parents depend on welfare payments
for survival, they are exposed to
the sometimes coercive arguments of
welfare departments.
See H.R. Rep. No. 1386, 95th Cong., 2d Sess.
11 (1978), reprinted in 1978 U.S. Code Cong.
& Admin. News 7530, 7533.[2]
_______________________________
1 We use pseudonyms for all family members and the
adoptive parents.
2 Indian Child Welfare Act 4, 25 U.S.C. 1903(4) (2000).
3 Although Joanne at first refused to identify David, she
indicated that the father was currently incarcerated for a
certain well-publicized crime. She also mentioned his last name.
The superior court indicated its intent to take judicial notice
of the fact that David was the person identified by Joanne.
4 State v. Dupier, 118 P.3d 1039, 1044 (Alaska 2005).
5 In re L.A.M., 727 P.2d 1057, 1060 (Alaska 1986).
6 The fact that the Grants unsuccessfully opposed Davids
individual-justice motion to accept the late-filed appeal does
not preclude them from again raising the issue of timeliness in
their briefing. See Radich v. Fairbanks Builders, Inc., 399 P.2d
215, 217 (Alaska 1965).
7 Isaacson Structural Steel Co., Div. of Isaacson Corp v.
Armco Steel Corp., 640 P.2d 812, 815 n.8 (Alaska 1982); see also
Radich, 399 P.2d at 217.
8 Noey v. Bledsoe, 978 P.2d 1264, 1270 (Alaska 1999).
9 Kirk stopped working on Davids case when we denied
Davids motion for reconsideration in 2004. David continued
filing motions from prison, apparently without copying Kirk with
those motions. Nor did the Grants serve Kirk with their response
to Davids motions. It is therefore understandable that Kirk
believed that his representation of David had ended.
10 AS 25.23.140(b) states:
Subject to the disposition of an appeal, upon
the expiration of one year after an adoption
decree is issued, the decree may not be
questioned by any person including the
petitioner, in any manner upon any ground,
including fraud, misrepresentation, failure
to give any required notice, or lack of
jurisdiction of the parties or of the subject
matter, unless, in the case of the adoption
of a minor the petitioner has not taken
custody of the minor, or, in the case of the
adoption of an adult, the adult had no
knowledge of the decree within the one-year
period.
11 Indian Child Welfare Act 104, 25 U.S.C. 1914 (2000).
Section 1911 of ICWA establishes the jurisdictional rights of
Indian tribes, including the right to exclusive jurisdiction over
Indian children residing within a reservation and the right to
intervene in other proceedings. Section 1912 provides parents
and Indian custodians with certain procedural rights, including
the right to notice, counsel, and discovery. It also sets
standards for termination of parental rights. Section 1913 sets
out the requirements for a voluntary relinquishment of parental
rights. David claimed violations of portions of all three of
these provisions.
12 As discussed below, ICWA does impose a minimum
limitations period of two years for actions challenging, on
grounds of fraud or duress, the voluntary relinquishment of
parental rights. 25 U.S.C. 1913(d). David does not rely on
this provision.
13 In re Adoption of T.N.F., 781 P.2d 973, 981 (Alaska
1989).
14 Id. at 98284 (Compton, J., concurring).
15 Id. at 98485 (Rabinowitz, J., dissenting).
16 Joseph v. State, 26 P.3d 459, 468 (Alaska 2001); see
also Thomas v. Anchorage Equal Rights Commn, 102 P.3d 937, 943
(Alaska 2004) (holding that the court will not overrule previous
holding entitled to stare decisis effect unless clearly
convinced that the rule was originally erroneous or is no longer
sound because of changed conditions, and that more good than harm
would result from a departure from precedent (quoting State
Commercial Fisheries Entry Commn v. Carlson, 65 P.3d 851, 859
(Alaska 2003))).
17 Ware v. Kentucky, 47 S.W.3d 333, 335 (Ky. 2001)
(quoting 20 Am. Jur. 2d Courts 159 (1995)); see also Negri v.
Slotkin, 244 N.W.2d 98, 100 (Mich. 1976) (Plurality decisions in
which no majority of the justices participating agree as to the
reasoning are not an authoritative interpretation binding on this
Court under the doctrine of Stare decisis.).
18 Marks v. United States, 430 U.S. 188, 193 (1977)
(internal quotation marks omitted); see also Cowles v. State, 23
P.3d 1168, 1178 n.28 (Alaska 2001) (Fabe, J., dissenting) (noting
Markss narrowest ground principle).
19 Anker Energy Corp. v. Consolidation Coal Co., 177 F.3d
161, 16970 (3d Cir. 1999).
20 T.N.F., 781 P.2d at 98284 (Compton, J., concurring).
21 Id. at 97578.
22 The Grants also suggest that David waived his argument
that T.N.F. lacked precedential force because he failed to raise
it with the superior court in his reply to the Grants opposition
to his petition to invalidate the decree. It is true that David
failed to respond to the Grants argument that T.N.F.s holding
barred his case. But [w]e will consider arguments not raised
explicitly in the trial court . . . if the issue is 1) not
dependent on any new or controverted facts; 2) closely related
to the appellants trial court arguments; and 3) could have been
gleaned from the pleadings. McConnell v. State, Dept of Health &
Soc. Servs., Div. of Med. Assistance, 991 P.2d 178, 183 (Alaska
1999) (internal quotations and citations omitted). In this case,
all three of these requirements are met. We also note that David
was effectively acting pro se at the time and that his pleadings
are therefore held to less stringent standards. See DeNardo v.
Calista Corp., 111 P.3d 326, 330 (Alaska 2005).
23 Bd. of Regents v. Tomanio, 446 U.S. 478, 483 (1980)
(holding that plaintiffs 42 U.S.C. 1983 claim was subject to New
York statutes of limitations).
24 Wilson v. Garcia, 471 U.S. 261, 26667 (1985); see also
Graham County Soil & Water Conservation Dist. v. United States,
125 S. Ct. 2444, 2448 (2005); N. Star Steel Co. v. Thomas, 515
U.S. 29, 3334 (1995); Reed v. Transp. Union, 488 U.S. 319, 32324
(1989). Although Congress passed a catch-all law in 1990 that
established a four-year limitations period for all federal claims
without limitations provisions, that statute only applies to
civil actions arising under an Act of Congress enacted after the
date of the enactment of this section. 28 U.S.C. 1658. All of
the ICWA provisions at issue in this case were enacted in their
current form in 1978, well before the 1990 enactment of the
federal catch-all statute of limitations.
25 A few treatises have discussed whether state statutes
of limitations apply to ICWA claims, but their discussions are
generally cursory. See, e.g., Thomas Jacobs, Children and the
Law: Rights and Obligations 5:13 (2006), available at Westlaw,
CALRO 5:13 (concluding that state statutes of limitations apply
to adoption challenges under ICWA); Conference of Western
Attorneys General, American Indian Law Deskbook 496 (3d ed. 2004)
(stating that state limitations periods are applicable to ICWA
claims); Jesse C. Trentadue & Myra A. DeMontigny, The Indian
Child Welfare Act of 1978: A Practitioners Perspective, 62 N.D.
L. Rev. 487, 536 (1986) (concluding that claims under 1914 may
be subject to state limitations periods unless challenged order
is void ab initio), cited in T.N.F., 781 P.2d at 979; B.J. Jones,
The Indian Child Welfare Act Handbook 101 (1995) (noting that
there does not appear to be any statute of limitations associated
with the use of 1914).
26 N. Cal. Retail Clerks Unions & Food Employers Joint
Pension Trust Fund v. Jumbo Mkts., Inc., 906 F.2d 1371, 1372 (9th
Cir. 1990).
27 Graham County, 125 S. Ct. at 2453 (holding that no
False Claims Act time limitations applied and remanding for
determination of which state statute of limitations to borrow).
28 N. Star Steel, 515 U.S. at 3335.
29 Reed, 488 U.S. at 32324.
30 Tomanio, 446 U.S. at 483484.
31 Livingston Sch. Dist. Nos. 4 & 1 v. Keenan, 82 F.3d
912, 918 (9th Cir. 1996).
32 Waggoner v. Dallaire, 649 F.2d 1362, 1367 (9th Cir.
1981).
33 See, e.g., Rhines v. Weber, 544 U.S. 269, 274 (2005)
(noting that until 1996 there was no statute of limitations on
federal habeas corpus petitions); Oneida County v. Oneida Indian
Nation, 470 U.S. 226, 243 (1985) (noting that certain land claims
under the Indian Claims Limitation Act of 1982 are exempt from
the limitations provisions in 28 U.S.C. 2415).
34 Barajas v. Bermudez, 43 F.3d 1251, 1260 (9th Cir.
1994); see also DelCostello v. Intl Bhd. of Teamsters, 462 U.S.
151, 16163 (1983).
35 Barajas, 43 F.3d at 1260.
36 DelCostello, 462 U.S. at 162.
37 Wilson, 471 U.S. at 26667.
38 25 U.S.C. 1913(d) provides:
After the entry of a final decree of adoption
of an Indian child in any State court, the
parent may withdraw consent thereto upon the
grounds that consent was obtained through
fraud or duress and may petition the court to
vacate such decree. Upon a finding that such
consent was obtained through fraud or duress,
the court shall vacate such decree and return
the child to the parent. No adoption which
has been effective for at least two years may
be invalidated under the provisions of this
subsection unless otherwise permitted under
State law.
(Emphasis added.) As the T.N.F. plurality pointed out, the
legislative history explains that [t]his right is limited to two
years after entry of the the decree unless a longer period is
provided by state law. T.N.F., 781 P.2d at 979 (quoting H.R. No.
95-1386, 95th Cong., 2d Sess. 23 (1978), reprinted in 1978
U.S.C.C.A.N. 7530, 754546).
39 T.N.F., 781 P.2d at 980.
40 25 U.S.C 1902.
41 Hernandez v. Lambert, 951 P.2d 436, 44142 (Alaska
1998); see also T.N.F., 781 P.2d at 980 (To allow collateral
attacks on final adoption decrees at any time threatens to
unreasonably disrupt the upbringing of the adopted child.).
42 See In re L.A.M., 727 P.2d 1057, 1060 (Alaska 1986).
43 25 U.S.C. 1921.
44 See State v. Dupier, 118 P.3d 1039, 1049 (Alaska 2005)
(noting that state laws are preempted if there is an actual
conflict between federal and state law).
45 AS 25.23.140(b) refers to the date on which an adoption
decree is issued without defining that term. Because Davids
petition was late under any possible definition of issued, we
need not determine its precise definition in this context.
Rather, we assume without deciding that an adoption decree is
issued on the date it is distributed to the parties, in this
case, on September 6, 2002. Cf. Alaska R. Civ. P. 58.1
(providing for judgments, that time for appeal, review, and
reconsideration begins running on date shown in clerks
certificate of distribution entered on written judgment).
1 781 P.2d 973, 984 (Alaska 1989).
2 Id. at 984-85 & n.1.
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| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
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