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In The Matter of: C.R.H. (08/31/2001) sp-5458
In The Matter of: C.R.H. (08/31/2001) sp-5458
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.
THE SUPREME COURT OF THE STATE OF ALASKA
) Supreme Court No. S-9677
IN THE MATTER OF: )
) Superior Court No.
C.R.H. ) 3AN-99-378 CP
)
) O P I N I O N
)
______________________________) [No. 5458 - August 31, 2001]
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Eric T. Sanders, Judge.
Appearances: Chris Provost and Harold N.
Brown, Tanana Chiefs Conference, Inc.,
Fairbanks, for the Native Village of Nikolai.
Donna J. Goldsmith, Assistant Attorney
General, and Bruce M. Botelho, Attorney
General, Juneau, for the State of Alaska.
Lois J. Schiffer, Assistant Attorney General,
Washington, D.C., Ethan G. Shenkman, Attorney,
Department of Justice, Washington, D.C.,
Judith Rabinowitz, Attorney, Department of
Justice, San Francisco, California, John D.
Leshy, Solicitor, and Tricia Tingle, Office of
the Solicitor, Department of the Interior,
Washington, D.C., for Amicus Curiae the United
States.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
FABE, Chief Justice.
I. INTRODUCTION
Under subsection 1911(b) of the Indian Child Welfare Act[Fn. 1]
(ICWA), state courts must transfer certain child custody cases to
tribal courts unless either the parents or tribe object, or there
exists good cause to decline transfer. Following our decisions in
Native Village of Nenana v. State, Department of Health & Social
Services and subsequent cases, however, Alaska Native Villages have
been precluded from accepting jurisdiction over ICWA cases.[Fn. 2]
Neither Nenana nor later cases affirming it included analysis of
the language and structure of ICWA's transfer provisions in section
1911. Because we conclude that section 1911 authorizes transfer
jurisdiction for federally recognized tribes in Alaska, we hold
that tribes may accept transfer jurisdiction under this section of
ICWA. We overrule Nenana and subsequent decisions affirming its
holding to the extent that those cases are inconsistent with
today's decision.
II. FACTS AND PROCEEDINGS
C.R.H. was born in Anchorage on June 27, 1999. Her
mother is a member of the Native Village of Nikolai, and her father
is a member of the Native Village of Chickaloon; C.R.H. is eligible
for membership in Nikolai. The State, Department of Health and
Social Services (DHSS) assumed emergency custody of C.R.H. on June
30, 1999, and she has not been in her parents' custody since that
time. She currently lives with maternal relatives in Nikolai. The
parties to this appeal agree that this should be C.R.H.'s permanent
home, but disagree about the appropriate legal mechanism for
finalizing the placement.
DHSS filed for determination that C.R.H. was a child in
need of aid and for C.R.H.'s temporary placement on June 30, 1999.
The superior court held a number of probable cause hearings
beginning on July 2, 1999. After the first probable cause hearing,
the superior court found temporary probable cause and ordered DHSS
to take temporary custody pending a second hearing. At the second
hearing, on July 7, the Chickaloon Village Traditional Council
moved to intervene as the child's tribe under ICWA and requested
that the case be transferred to the tribal court. At the third
hearing, on July 12, the parties stipulated to temporary legal
custody with DHSS, Division of Family and Youth Services (DFYS),
pending legal resolution of the intervention and jurisdiction
questions in this case. The parties also later stipulated that
C.R.H. was a child in need of aid.
On August 3, 1999, the Native Village of Nikolai,
represented by the Tanana Chiefs Conference, filed its first motion
to intervene. During the hearing, a Tanana Chiefs attorney
informed the superior court that the Villages of Chickaloon and
Nikolai had agreed that Nikolai would act as C.R.H.'s tribe for
ICWA purposes; Chickaloon requested that its own motions be held in
abeyance in favor of Nikolai's. The court granted Nikolai's motion
to intervene under ICWA and its motion for determination that
Nikolai was C.R.H.'s ICWA tribe.
Nikolai then moved to transfer jurisdiction to the
Nikolai tribal court. The State argued in opposition that under
the Nenana line of cases, Public Law 280[Fn. 3] (P.L. 280) barred Nikolai
from asserting jurisdiction over an ICWA case unless Nikolai had
reassumed jurisdiction to adjudicate ICWA cases under 25 U.S.C. '
1918. The State's brief stated that "[a]lthough the Department
wishes this were not the law in this state, it is constrained, as
is [the superior] court, to follow [the Nenana line of cases] until
the Alaska Supreme Court overrules these decisions." The superior
court denied Nikolai's transfer motion. It directed entry of final
judgment for purposes of appeal under Alaska Civil Rule 54(b),
while retaining jurisdiction over the rest of the case. Nikolai
brings this appeal, which is limited to the tribal court transfer
issue.
III. STANDARD OF REVIEW
The parties do not dispute any legally relevant facts.
The questions presented are solely questions of law, to which we
apply our independent judgment.[Fn. 4]
IV. DISCUSSION
Federally recognized tribes, including the Native Village
of Nikolai,[Fn. 5] retain their sovereign powers unless Congress
specifically withdraws their authority.[Fn. 6]
Under P.L. 280, Congress extended Alaska state courts'
jurisdiction to "all Indian country" within Alaska.[Fn. 7] This court
interpreted P.L. 280 in Native Village of Nenana, holding that
through that law Congress effectively divested tribal jurisdiction
and granted the state "exclusive jurisdiction over matters
involving the custody of Indian children."[Fn. 8] State jurisdiction
remained exclusive, we held, unless a tribe governed by P.L. 280
successfully petitioned to reassume custody under ICWA section
1918.[Fn. 9]
Nikolai urges us to reconsider Nenana's interpretation of
P.L. 280, and to hold that the Alaska Native tribes affected by
P.L. 280 retain jurisdiction concurrent with that of the state. We
need not reach this issue, however, because the jurisdiction
claimed by Nikolai exists regardless of P.L. 280: Subsection
1911(b) tribal transfer jurisdiction over ICWA custody cases was
expressly approved by Congress in enacting ICWA. The language and
structure of section 1911 reflect congressional intent that all
tribes, regardless of their P.L. 280 status, be able to accept
transfer jurisdiction of ICWA cases from state courts. We
therefore hold that Nikolai may assume jurisdiction over this case
under ICWA's subsection 1911(b) transfer provision. To the extent
that Nenana,[Fn. 10] F.P.,[Fn. 11] and K.E.[Fn. 12] are inconsistent with this
decision, those cases are overruled.[Fn. 13]
ICWA section 1911 reads in critical part:
(a) Exclusive jurisdiction
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.
(b) Transfer of proceedings; declination by
tribal court
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 or 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.[Fn. 14]
As the above language makes clear, Congress intended P.L.
280 to affect tribes' exclusive jurisdiction under subsection
1911(a), but did not intend P.L. 280 to affect transfer
jurisdiction under subsection 1911(b). Subsection 1911(a) grants
tribes exclusive jurisdiction over cases involving children who
reside on reservations "except where such jurisdiction is otherwise
vested in the State by existing Federal law" such as P.L. 280.[Fn. 15]
With this qualifying language, Congress recognized P.L. 280 as a
limitation on exclusive tribal jurisdiction. By contrast, in
subsection 1911(b), Congress did not articulate a P.L. 280
exception to tribal transfer jurisdiction. Rather, it provided
that "in any State court proceeding . . . the court, in the absence
of good cause to the contrary, shall transfer such proceeding to
the jurisdiction of the tribe."[Fn. 16] Subsection 1911(b) therefore
authorizes transfer to tribal courts regardless of whether or how
P.L. 280 otherwise affects the tribes' jurisdiction.[Fn. 17]
ICWA subsection 1911(b) creates three checks on tribal
transfer jurisdiction: State courts should retain jurisdiction if
either parent objects to the tribe hearing the case, if the tribe
declines jurisdiction, or if the court finds good cause to deny
transfer. Congress intended that state courts apply the good cause
exception using a "modified doctrine of forum non conveniens . . .
to insure that the rights of the child as an Indian, the Indian
parents or custodian, and the tribe are fully protected."[Fn. 18] The
Bureau of Indian Affairs provides further guidelines regarding the
good cause exception.[Fn. 19] These guidelines are not binding, and we
have departed from them in the past.[Fn. 20] Under the guidelines, state
courts should deny transfer if the tribe does not have a court as
defined by the Act.[Fn. 21] The guidelines also specify the circumstances
in which a state may wish to deny transfer. These include cases in
which state proceedings are well advanced before tribes petition
for transfer; cases in which a teenaged child who is the subject of
the proceedings objects to the transfer; cases in which necessary
evidence could not be presented to the tribal court without undue
hardship to parties or witnesses; and cases in which a child over
five years of age has had little contact with the tribe and the
child's parents are unavailable.[Fn. 22] The guidelines place the burden
of establishing good cause to deny transfer jurisdiction on the
party opposing the transfer.[Fn. 23] The good cause exception -- like the
comity analysis discussed in John v. Baker -- "is not an invitation
for our courts to deny recognition to tribal [courts] based on
paternalistic notions of proper procedure. . . . [S]uperior courts
should strive to respect the cultural differences that influence
tribal jurisprudence, as well as to recognize the practical limits
experienced by smaller court systems."[Fn. 24]
Because the superior court concluded that Nikolai could
not claim subsection 1911(b) transfer jurisdiction, it did not
carry out an analysis of good cause. On remand, the superior court
should inquire whether good cause exists to deny transfer to
Nikolai. If no such cause exists, then transfer to the tribal
court is appropriate under ICWA subsection 1911(b).
V. CONCLUSION
We conclude that ICWA subsection 1911(b) authorizes
transfer of jurisdiction to tribal courts regardless of P.L. 280.
To the extent that Nenana,[Fn. 25] F.P.,[Fn. 26] and K.E.[Fn. 27] are
inconsistent with this conclusion, those cases are overruled. We
REMAND this case for transfer to the Nikolai tribal court unless the
superior court finds good cause to deny transfer.
1. 25 U.S.C. §§ 1901-1963 (2000).
2. 722 P.2d 219 (Alaska 1986); In re F.P., 843 P.2d 1214
(Alaska 1992); In re K.E., 744 P.2d 1173 (Alaska 1987).
3. Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588, 589
(codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-26, 28
U.S.C. § 1360).
4. See Temple v. Denali Princess Lodge, 21 P.3d 813, 815
(Alaska 2001).
5. We follow the U.S. Congress's determination that Alaska
Native tribes are sovereign powers under federal law. See John v.
Baker, 982 P.2d 738, 749 (Alaska 1999), cert. denied, 528 U.S. 1182
(2000). In John, we affirmed the Native Village of Northway's
sovereignty based on the village's inclusion in the Department of
the Interior's 1993 tribe list and the 1994 Tribe List Act. See
id. at 750. Like Northway Village, Nikolai Village is on the
Department of the Interior's 1993 tribe list, see Indian Entities
Recognized and Eligible to Receive Services from the United States
Bureau of Indian Affairs, 58 Fed. Reg. 54,364, 54,369 (1993), and
on every tribe list since issued by that Department. See Indian
Entities Recognized and Eligible to Receive Services from the
United States Bureau of Indian Affairs, 60 Fed. Reg. 9250, 9255
(1995); Indian Entities Recognized and Eligible to Receive Services
from the United States Bureau of Indian Affairs, 61 Fed. Reg.
58,211, 58,215 (1996); Indian Entities Recognized and Eligible to
Receive Services from the United States Bureau of Indian Affairs,
62 Fed. Reg. 55,270, 55,275 (1997); Indian Entities Recognized and
Eligible to Receive Services from the United States Bureau of
Indian Affairs, 63 Fed. Reg. 71,941, 71,945 (1998); Indian Entities
Recognized and Eligible to Receive Services from the United States
Bureau of Indian Affairs, 65 Fed. Reg. 13,298, 13,302 (2000). In
the Tribe List Act, Congress recognizes as an Indian tribe "any
Indian or Alaska Native tribe, band, nation, pueblo, village or
community that the Secretary of the Interior acknowledges to exist
as an Indian tribe." 25 U.S.C. § 479a(2) (2000).
6. See John, 982 P.2d at 751; see also Iowa Mutual Ins. Co.
v. LaPlante, 480 U.S. 9, 18 (1987); Merrion v. Jicarilla Apache
Tribe, 455 U.S. 130, 149 (1982).
7. 28 U.S.C. § 1360(a) provides:
Each of the States listed in the following
table shall have jurisdiction over civil
causes of action between Indians or to which
Indians are parties which arise in the areas
of Indian country listed opposite the name of
the State to the same extent that such State
has jurisdiction over other civil causes of
action, and those civil laws of such State
that are of general application to private
persons or private property shall have the
same force and effect within such Indian
country as they have elsewhere within the
State:
State of Indian country affected
Alaska All Indian country within the
State.
8. 722 P.2d 219, 221 (Alaska 1986).
9. Id. at 221. In John, we noted that P.L. 280 does not
apply to those Alaska Native tribes that do not occupy Indian
country. 982 P.2d at 748.
10. Native Village of Nenana v. State, Dep't of Health & Soc.
Servs., 722 P.2d 219 (Alaska 1986).
11. In re F.P., 843 P.2d 1214 (Alaska 1992).
12. In re K.E., 744 P.2d 1173 (Alaska 1987).
13. Nenana based its analysis primarily on the language of
ICWA section 1918. See 722 P.2d at 221-22. As the discussion
above makes clear, we now find that section 1911 and not section
1918 controls this legal question.
14. 25 U.S.C. § 1911. The remainder of § 1911 provides:
(c) State court proceedings; intervention
In any State court proceeding for the foster
care placement of, or termination of parental
rights to, an Indian child, the Indian
custodian of the child and the Indian child's
tribe shall have a right to intervene at any
point in the proceeding.
(d) Full faith and credit to public acts,
records, and judicial proceedings of Indian
tribes
The United States, every State, every
territory or possession of the United States,
and every Indian tribe shall give 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.
15. 25 U.S.C. § 1911(a) (emphasis added).
16. 25 U.S.C. § 1911(b) (emphasis added). As the United
States Supreme Court has noted, ICWA subsection 1911(b) "creates
concurrent but presumptively tribal jurisdiction" over proceedings
involving children not domiciled on reservations. Mississippi Band
of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989) (emphasis
added). By mandating that state courts "shall," absent good cause
to deny transfer or objection by a parent or the tribe, transfer
jurisdiction to tribal courts, Congress created a strong
presumption in favor of transfer. See 25 U.S.C. ' 1911(b).
17. We find the language of section 1911 to be clear.
However, if it were ambiguous, the result reached above would still
be mandated by the constructive canon that "[c]ourts must resolve
ambiguities in statutes affecting the rights of Native Americans in
favor of Native Americans." John v. Baker, 982 P.2d 738, 752
(Alaska 1999), cert. denied, 528 U.S. 1182 (2000).
18. H.R. Rep. No. 95-1386, at 8 (1978), reprinted in 1978
U.S.C.C.A.N. 7530, 7544. For discussion of forum non conveniens
factors, including private interests of the litigants, public
interests of the forum state, and the existence of an adequate
alternative forum for dispute resolution, see Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 254 n.22 (1981), and In re Union Carbide Corp.
Gas Plant Disaster at Bhopal, India in Dec., 1984, 809 F.2d 195 (2d
Cir. 1987).
19. Bureau of Indian Affairs, U.S. Dep't of the Interior,
Guidelines for State Courts, Child Custody Proceedings, 44 Fed.
Reg. 67,584 (1979).
20. See C.L. v. P.C.S., 17 P.3d 769, 776 (Alaska 2001); In re
Adoption of F.H., 851 P.2d 1361, 1364 (Alaska 1993).
21. See 44 Fed. Reg. at 67,591.
22. The Bureau of Indian Affairs guidelines provide, in part:
(a) Good cause not to transfer the proceeding
exists if the Indian child's tribe does not
have a tribal court as defined by the Act to
which the case can be transferred.
(b) Good cause not to transfer the proceeding
may exist if any of the following
circumstances exists:
(i) The proceeding was at an advanced
stage when the petition to transfer was
received and the petitioner did not file
the petition promptly after receiving
notice of the hearing.
(ii) The Indian child is over twelve
years of age and objects to the transfer.
(iii) The evidence necessary to decide
the case could not be adequately
presented in the tribal court without
undue hardship to the parties or the
witnesses.
(iv) The parents of a child over five
years of age are not available and the
child has had little or no contact with
the child's tribe or members of the
child's tribe.
44 Fed. Reg. at 67,591.
23. "The burden of establishing good cause to the contrary
shall be on the party opposing the transfer." 44 Fed. Reg. at
67,591.
24. John, 982 P.2d at 763 (internal citation omitted); see
also BIA guidelines, 44 Fed. Reg. at 67,591 ("Socio-economic
conditions and the perceived adequacy of tribal or Bureau of Indian
Affairs social services or judicial systems may not be considered
in a determination that good cause exists.").
We note that state courts are split on the question
whether good cause analysis for denying section 1911 transfer
jurisdiction should include substantive considerations of the best
interests of the child. Because the facts of this case do not
require us to decide this issue, we do not address it. Compare In
re Armell, 550 N.E.2d 1060, 1065 (Ill. App. 1990) (best interests
of child are not relevant to subsection 1911(b) good cause
determination), and Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152,
170 (Tex. App. 1995) (same), with In re Appeal in Maricopa County
Juvenile Action No. JS-8287, 828 P.2d 1245, 1251 (Ariz. App. 1991)
(best interests of child are relevant to subsection 1911(b) good
cause determination), and In re Robert T., 246 Cal. Rptr. 168, 174-
75 (Cal. App. 1988) (same).
25. Native Village of Nenana v. State, Dep't of Health & Soc.
Servs., 722 P.2d 219 (Alaska 1986).
26. In re F.P., 843 P.2d 1214 (Alaska 1992).
27. In re K.E., 744 P.2d 1173 (Alaska 1987).
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