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In the Matter of F.P., W.M. and A.M. (12/18/92), 843 P 2d 1214
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NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
IN THE MATTER OF )
F.P., W.M. AND A.M., ) File No. S-4742
)
Minor Children Under the Age of) 4FA 91 37 CP
Eighteen (18) Years. )
) O P I N I O N
)
________________________________) [No. 3906 - December 18, 1992]
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Mary E. Green and James A. Hanson,
Judges.
Appearances: Michael J. Walleri & Lee D.
Goodman, Jr., Tanana Chiefs Conference, Fair
banks, for Appellant Native Village of
Circle. D. Rebecca Snow, Assistant Attorney
General, Fairbanks, Charles E. Cole, Attorney
General, Juneau, for Appellee State of
Alaska.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
PER CURIAM.
RABINOWITZ, Chief Justice, dissenting.
In March 1991 the Alaska Department of Health and
Social Services took emergency custody of F.P., W.M. and A.M.
The Department filed a petition for temporary custody. The
Native Village of Circle intervened and moved to dismiss the
superior court proceeding, claiming exclusive jurisdiction over
the custody matter. The superior court denied the motion to
dismiss. We affirm.
Circle is without jurisdiction in this child custody
dispute. This case is controlled by Native Village of Nenana v.
Department of Health & Social Services, 722 P.2d 219 (Alaska
1986), cert. denied, 479 U.S. 1008 (1986), and In re K.E., 744
P.2d 1173 (Alaska 1987). Circle asks that we review our holdings
in these cases in light of recent opinions of the United States
Court of Appeals for the Ninth Circuit, especially Native Village
of Venetie I.R.A. Council v. Alaska, 944 F.2d 548 (9th Cir.
1991).
The decision in Native Village of Venetie fails to
persuade us that our prior cases should be overruled.1 In
concluding that the villages of Venetie and Fort Yukon had
concurrent jurisdiction in child custody matters, the Venetie
court held that these villages could be considered "sovereign,"
and therefore entitled to "the same rights and responsibilities
as [] sovereign bands of native Americans in the continental
United States,"if they were "modern day successors to sovereign
historical bands of natives." Id. at 559. This opinion is
contrary to Native Village of Stevens v. Alaska Management &
Planning, 757 P.2d 32 (Alaska 1988), where we concluded that "the
history of the relationship between the federal government and
Alaska Natives . . . indicates that Congress intended that most
Alaska Native groups not be treated as sovereigns." Id. at 34.
Under 25 U.S.C. 1918(a) (1988), any Alaskan Native group
seeking to "reassume"jurisdiction over child custody matters
must first petition the Secretary of the Interior for approval.2
The Ninth Circuit recognized this in Venetie. Venetie, 944 F.2d
at 555. Nevertheless, it concluded that neither the Indian Child
Welfare Act (25 U.S.C. 1901-63 (1988)) nor Public Law 280
prevents Alaskan Native groups from exercising concurrent
jurisdiction over child custody matters. Id. at 562.
We reached an opposite conclusion in Native Village of
Nenana:
Our reading of 25 U.S.C. 1918(a)
indicates that Congress intended that Public
Law 280 give certain states, including
Alaska, exclusive jurisdiction over matters
involving the custody of Indian children, and
that those states exercise such jurisdiction
until a particular tribe petitions to
reassume jurisdiction over such matters, and
the Secretary of the Interior approves [the]
tribe's petition.
Native Village of Nenana, 722 P.2d at 221. Our analysis of the
issue need not be repeated here. See id. at 221-22; see also In
re K.E., 744 P.2d at 1174. We remain convinced that our inter
pretation of 1918(a) is correct. Nothing in Native Village of
Venetie persuades us to change our opinion.
Since Circle has not successfully petitioned the
Secretary of the Interior to reassume jurisdiction pursuant to 25
U.S.C. 1918(a), it has no jurisdiction to decide child custody
matters. The superior court therefore correctly denied Circle's
motion to dismiss.3
AFFIRMED.
RABINOWITZ, Chief Justice, dissenting.
I dissent from this court's affirmance of the superior
court's denial of Native Village of Circle's motion to dismiss
the state's motion for temporary custody. The rationale for the
court's opinion is that the superior court's ruling should be
affirmed because Circle lacks jurisdiction to decide child
custody matters since it has not as yet successfully petitioned
the Secretary of Interior to reassume jurisdiction over child
custody matters pursuant to 25 U.S.C. 1918(a).
Unlike the majority I am persuaded by the Ninth
Circuit's analysis in Native Village of Venetie I.R.A. Council v.
Alaska, 944 F.2d 548 (9th Cir. 1991) that our decisions in Native
Village of Nenana v. Department of Health & Social Services, 722
P.2d 219 (Alaska 1986), cert. denied, 479 U.S. 1008 (1986) and In
re K.E., 744 P.2d 1173 (Alaska 1987) were incorrectly decided and
should be overruled. It follows that I cannot join the majority
in its reliance upon Native Village of Stevens v. Alaska
Management & Planning, 757 P.2d 32 (Alaska 1988) in support of
its rejection of the Ninth Circuit's Venetie opinion. In brief,
I adhere to the views I expressed in my dissent in Native Village
of Stevens.
With the passage of the Indian Child Welfare Act
(ICWA), Congress implemented the policy of promoting tribal
integrity by establishing various procedural and substantive
protections to govern Indian child custody matters.4
"Significantly, the declaration of the Act's legislative purpose
includes both the protection of `the best interests of Indian
children' and the promotion of `the stability and security of
Indian tribes and families.'"5
To accomplish the federal policy of promoting tribal
integrity by stopping the "wholesale separation of Indian
children from their families,"6 ICWA mandates specific
jurisdictional rules7 and further mandates that federal, state,
and tribal governments:
[G]ive 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.
25 U.S.C. 1911(d) (1988).
Alaska Native villages are recognized by Congress as
"Indian tribes" for purposes of the ICWA. See 25 U.S.C.
1903(8).8 This court has previously acknowledged the role of
Alaskan tribal courts in Indian child custody matters. See In re
J.M., 718 P.2d 150 (Alaska 1986) (Village council operated under
the code or custom of an "Indian tribe"and, under the ICWA, was
vested with exclusive jurisdiction as a "tribal court" over
matter of custody of Indian child and, in absence of a waiver,
was not precluded from claiming same in proceedings in state
court to place child in foster care and terminate natural
mother's parental rights.).
Tribes have jurisdiction over their members by virtue
of their inherent sovereignty. See Montana v. United States, 450
U.S. 544, 564 (1981) ("[T]he Indian tribes retain their inherent
power to determine tribal membership, to regulate domestic
relations among members, and to prescribe rules of inheritance
for members."); see also Duro v. Reina, 495 U.S. 676, 685-86
(1990) ("the retained sovereignty of the tribes is that needed to
control their own internal relations, and to preserve their own
unique customs and social order [and] . . . to prescribe and
enforce rules of conduct for [their] own members."). A tribe's
sovereign authority, moreover, is presumed until Congress
affirmatively acts to take such authority away. Native Village
of Venetie, 944 F.2d at 556; see also United States v. Wheeler,
435 U.S. 313, 323 (1978) ("[U]ntil Congress acts, the tribes
retain their existing sovereign powers.").
Given these principles, in my view it is inconsistent
with the doctrine of inherent tribal sovereignty to conclude that
19189 of the ICWA and Public Law 280, taken together, divest
tribes of even concurrent jurisdiction over child custody
matters. Such a conclusion can only be reached if Public Law 280
is interpreted as a divestiture statute.
It is on this point that I find Judge O'Scannlain's
analysis in Native Village of Venetie persuasive. There Judge
O'Scannlain wrote:
The Supreme Court has also adopted
the view that Public Law 280 is not a
divestiture statute. See Cabazon Band of
Mission Indians, 480 U.S. at 207-12, 107 S.
Ct. at 1087-90; Bryan, 426 U.S. at 383-90, 96
S. Ct. at 2108-12; see also Walker v.
Rushing, 898 F.2d 672, 675 (8th Cir. 1990)
("Public Law 280 did not itself divest Indian
tribes of their sovereign power to punish
their own members for violations of tribal
law. Nothing in the wording of Public Law
280 or its legislative history precludes
concurrent jurisdiction."). In Bryan, the
Court observed that "nothing in [Public Law
280's] legislative history remotely suggests
that Congress meant the Act's extension of
civil jurisdiction to the States should
result in the undermining or destruction of
such tribal governments as did exist and a
conversion of the affected tribes into little
more than `private voluntary organizations.'"
426 U.S. at 388, 96 S. Ct. at 2111 (quoting
United States v. Mazurie, 419 U.S. 544, 557,
95 S. Ct. 710, 717, 42 L. Ed. 2d 706 (1975)).
The Court has rejected all interpretations of
Public Law 280 which would result in an
undermining or destruction of tribal
governments.
. . . .
Finally, we note that Congress was
aware, while drafting the Indian Child
Welfare Act, that the U.S. Department of
Justice viewed Public Law 280 as providing
for concurrent jurisdiction among state and
tribal courts. Then - Assistant Attorney
General for Legislative Affairs Patricia M.
Wald wrote to Interior and Insular Affairs
Committee Chairman Morris K. Udall: "As you
may be aware, the courts have consistently
recognized that tribal governments have
exclusive jurisdiction over the domestic
relationships of tribal members located on
reservations, unless a State has assumed
concurrent jurisdiction pursuant to Federal
legislation such as Public Law 83-280."
Letter from Assistant Attorney General
Patricia M. Wald to Hon. Morris K. Udall
(Feb. 8, 1978), included in H.R. Rep. No.
1386, 95th Cong. 2d Sess. 35, reprinted in
1978 U.S. Code Cong. & Admin. News 7530, 7558
(emphasis added).
In spite of the foregoing, Alaska
suggests that section 1918 of the Indian
Child Welfare Act would be rendered
meaningless by any non-divestiture
interpretation of Public Law 280. However,
the two statutes can be harmonized without
construing Public Law 280 as a divestiture
statute. See Ruckelshaus v. Monsanto Co.,
467 U.S. 986, 1018, 104 S.Ct. 2862, 2880, 81
L. Ed. 2d 815 (1984) (statutes capable of
being harmonized should be so construed).
The relevant portions of the Indian Child
Welfare Act enable the Secretary of the
Interior to grant to a tribe, upon receipt of
a proper petition, exclusive jurisdiction
(over all or a portion of the appropriate
"Indian country") or referral jurisdiction of
child-custody proceedings. See 25 U.S.C.
1918(b)(2) (1988). Each of these types of
jurisdiction is broader than any tribal
jurisdiction which is concurrent with the
states. Exclusive jurisdiction, of course,
is clearly broader than concurrent
jurisdiction. Likewise, referral
jurisdiction is broader in scope than
concurrent jurisdiction, in that referral
jurisdiction is concurrent but presumptively
tribal jurisdiction. See id. 1911(b).
Thus, there is something for a tribe to
"reassume" under section 1918 -- namely,
exclusive or referral jurisdiction -- even if
Public Law 280 is read as not divesting the
tribes of concurrent jurisdiction.
In sum, giving the benefit of doubt
to Alaska, we conclude that Public Law 280
and the Indian Child Welfare Act are, at
best, ambiguous as to whether states have
exclusive or concurrent jurisdiction over
child custody determinations where the tribe
has not petitioned for exclusive or referral
jurisdiction. Of course, ambiguities are to
be resolved to the benefit of Indians.
Montana v. Blackfeet Tribe, 471 U.S. 759,
766, 105 S. Ct. 2399, 2403, 85 L. Ed. 2d 753
(1985). Accordingly, resolving the jurisdic
tional ambiguities in favor of the villages,
we hold that neither the Indian Child Welfare
Act nor Public Law 280 prevents them from
exercising concurrent jurisdiction. If the
native villages of Venetie and Fort Yukon are
sovereign entities which may exercise
dominion over their members' domestic
relations, Alaska must give full faith and
credit to any child-custody determinations
made by the villages' governing bodies in
accordance with the full faith and credit
clause of the Indian Child Welfare Act.
Id. at 560-62.10
_______________________________
1. As the court of appeals observed in Harrison v. State,
791 P.2d 359 (Alaska App. 1990):
Where a federal question is
involved, the courts of Alaska are not bound
by the decisions of a federal court other
than the United States Supreme Court. The
converse is also true; federal courts in
Alaska are not bound by decisions of Alaska
state courts on questions of federal law.
Id., at 363 n.7 (citations omitted).
2. Section 1918(a) provides:
Any Indian tribe which became subject to
State jurisdiction pursuant to the provisions
of the Act of August 15, 1953 (67 Stat. 588),
as amended by Title IV of the Act of April
11, 1968 (82 Stat. 73, 78), or pursuant to
any other Federal law, may reassume
jurisdiction over child custody proceedings.
Before any Indian tribe may reassume
jurisdiction over Indian child custody
proceedings, such tribe shall present to the
Secretary for approval a petition to reassume
such jurisdiction which includes a suitable
plan to exercise such jurisdiction.
The Act of August 15, 1953 is commonly referred to as "Public Law
280." Alaska has been a "Public Law 280"state since 1958. 72
Stat. 545 (1958).
3. We have reviewed Circle's remaining arguments and have
concluded that they lack merit.
4. The policy of ICWA was based on the following
congressional findings:
Recognizing the special relationship
between the United States and the Indian
tribes and their members and the Federal
responsibility to Indian people, the Congress
finds --
(1) that Clause 3, section 8,
article I of the United States Constitution
provides that "The Congress shall have Power
. . . To regulate Commerce . . . with Indian
tribes" and, through this and other
constitutional authority, Congress has
plenary power over Indian affairs;
(2) that Congress, through
statutes, treaties, and the general course of
dealing with Indian tribes, has assumed the
responsibility for the protection and
preservation of Indian tribes and their
resources;
(3) that there is no resource that
is more vital to the continued existence and
integrity of Indian tribes than their
children and that the United States has a
direct interest, as trustee, in protecting
Indian children who are members of or are
eligible for membership in an Indian tribe;
(4) that an alarmingly high
percentage of Indian families are broken up
by the removal, often unwarranted, of their
children from them by nontribal public and
private agencies and that an alarmingly high
percentage of such children are placed in non-
Indian foster and adoptive homes and
institutions; and
(5) that the States, exercising
their recognized jurisdiction over Indian
child custody proceedings through
administrative and judicial bodies, have
often failed to recognize the essential
tribal relations of Indian people and the
cultural and social standards prevailing in
Indian communities and families.
25 U.S.C. 1901 (1988).
5. Barbara Ann Atwood, Fighting Over Indian Children: The
Uses and Abuses of Jurisdictional Ambiguity, 36 UCLA L. REV.
1051, 1058 (1989); citing to 1902. Section 1902 states:
The Congress hereby declares that
it is the policy of this Nation to protect
the best interests of Indian children and to
promote the stability and security of Indian
tribes and families by the establishment of
minimum Federal standards for the removal of
Indian children from their families and the
placement of such children in foster or
adoptive homes which will reflect the unique
values of Indian culture, and by providing
for assistance to Indian tribes in the
operation of child and family service
programs.
6. H.R. REP. NO. 1386, 95th Cong., 2d Sess. 9, reprinted in
1978 U.S. CONG. & ADMIN. NEWS 7530, 7531.
7. 25 U.S.C. 1911(a) provides:
An Indian tribe shall have
jurisdiction exclusive as to any State over
any child custody proceeding involving an
Indian child who resides or is domiciled
within the reservation of such tribe, except
where such jurisdiction is otherwise vested
in the State by existing Federal law. Where
an Indian child is a ward of a tribal court,
the Indian tribe shall retain exclusive
jurisdiction, notwithstanding the residence
or domicile of the child.
Section 1911(b) provides:
In any State court proceeding for
the foster care placement of, or termination
of parental rights to, an Indian child not
domiciled or residing within the reservation
of the Indian child's tribe, the court, in
the absence of good cause to the contrary,
shall transfer such proceeding to the
jurisdiction of the tribe, absent objection
by either parent, upon the petition of either
parent of the Indian custodian or the Indian
child's tribe: Provided, That such transfer
shall be subject to declination by the tribal
court of such tribe.
8. Section 1903(8) states:
"Indian tribe"means any Indian tribe,
band, nation, or other organized group or
community of Indians recognized as eligible
for the services provided to Indians by the
Secretary because of their status as Indians,
including any Alaska Native village as
defined in section 1602(c) of Title 43.
9. Section 1918 limits the jurisdiction granted in sections
1911(a) & (b). Section 1918(a) provides:
Any Indian tribe which became
subject to State jurisdiction pursuant to the
provisions of the Act of August 15, 1953 (67
Stat. 588), as amended by Title IV of the Act
of April 11, 1968 (82 Stat. 73, 78), or
pursuant to any other Federal law, may
reassume jurisdiction over child custody
proceedings. Before any Indian tribe may
reassume jurisdiction over Indian child
custody proceedings, such tribe shall present
to the Secretary for approval a petition to
reassume such jurisdiction which includes a
suitable plan to exercise such jurisdiction.
10. In regard to the majority's reliance on Native Village
of Stevens v. Alaska Management & Planning, 757 P.2d 32 (Alaska
1988), I reaffirm the views expressed in my dissenting opinion in
that case and take this occasion to explicitly reiterate my
conclusion that:
As stated earlier I agree with the
court that there has never been any express
federal recognition of Alaska Native villages
as tribes for purposes of sovereign immunity.
However, it is equally clear that Congress
has never expressly denied sovereign immunity
to these villages. The unfortunate but
inescapable fact is that Congress has
steadfastly avoided defining the extent and
limits of Native sovereignty in Alaska.
Illustrative of this fact are the recent
"1991"amendments to ANCSA, in which Congress
declared, "[N]o provision of this Act shall
. . . confer on, or deny to, any Native
organization any degree of sovereign
governmental authority over lands . . . or
persons in Alaska. . . ." Alaska Native
Claims Settlement Act Amendments of 1987,
Pub. L. No. 100-241, 2(8)(B), 101 Stat.
1788, 1789 (1988). See also id. 17(a), 101
Stat. 1814. The Senate Report on the bill
stated:
. . . .
This is an issue
which should be left to the courts
in interpreting applicable law and
that these amendments should play
no substantive or procedural role
in such court decisions.
S. Rep. No. 201, 100th Cong. 1st Sess.
23 (1987), U.S. Code Cong. & Admin. News
1988, pp. 3269, 3274.
Thus, it appears that Congress has
chosen to abdicate to the courts on this
issue. In the absence of any express federal
recognition or waiver of sovereign immunity,
this court is bound to follow the common law
principles of tribal sovereign immunity
announced by the Supreme Court. In my view
the court's opinion fails to do this.
Id. at 49-50.
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