Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State, Dept. of Health & Social Services, Div. of Family & Youth Services v. Native Village of Curyung (12/15/2006) sp-6083

State, Dept. of Health & Social Services, Div. of Family & Youth Services v. Native Village of Curyung (12/15/2006) sp-6083, 151 P3d 388

     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

STATE OF ALASKA, )
DEPARTMENT OF HEALTH AND ) Supreme Court No. S- 11355
SOCIAL SERVICES, DIVISION OF )
FAMILY AND YOUTH SERVICES; ) Superior Court No. 3DI-02-197 CI
and TOM CHERIAN, in his )
official capacity as Acting Director )
of the Division of Family and Youth )
Services, )
)
Petitioners, )
)
v. ) O P I N I O N
)
NATIVE VILLAGE OF CURYUNG, ) No. 6083 - December 15, 2006
on its own behalf and as parens )
patriae on behalf of its members, and )
NATIVE VILLAGE OF EKWOK, )
on its own behalf and as parens )
patriae on behalf of its members, )
NATIVE VILLAGE OF )
KWINHAGAK, on its own behalf and )
as parens patriae on behalf of its )
members, and CHEVAK NATIVE )
VILLAGE, on its own behalf and as )
parens patriae on behalf of its )
members, )
)
Respondents. )
)
Petition  for   Review
          from  the  Superior Court  of  the  State  of
          Alaska,  Third Judicial District, Dillingham,
          John Reese, Judge.

          Appearances:   Dan   N.   Branch,   Assistant
          Attorney   General,  and  Gregg  D.   Renkes,
          Attorney General, Juneau for the Petitioners.
          E.  Leigh Dickey, James J. Davis, Jr., Nikole
          Nelson,   Alaska   Legal   Services    Corp.,
          Anchorage, and Edward K.M. Bilich,  Peter  J.
          Wang, Jonathan Berman, Jones Day, Washington,
          DC,  for  the Respondents.   Heather Kendall-
          Miller,   Native   American   Rights    Fund,
          Anchorage, for Amicus Curiae Kenaitze  Indian
          Tribe,  IRA,  Native Village of  Venetie  IRA
          Tribal Government, Tuluksak Native Community,
          Mentasta  Lake  Village, and Sitka  Tribe  of
          Alaska.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          BRYNER, Chief Justice.


I.   INTRODUCTION
          Several  Alaska  Native Villages bring  suit  under  42
U.S.C.   1983 against the State of Alaska and the Acting Director
of  the  Division  of  Family and Youth Services.   The  villages
allege  ongoing systematic violations of the Adoption  Assistance
Act  and  the  Indian  Child Welfare  Act.   The  superior  court
dismissed  some of their claims, but denied the states motion  to
dismiss  all  of  the villages claims.  The  state  appeals.   We
conclude that the villages may bring suit as parens patriae under
  1983  to  enforce  rights  that are  created  by  the  Adoption
Assistance  Act  and  the  Indian Child  Welfare  Act.   However,
because  the  villages may not use  1983 to enforce  rights  that
they  possess  as sovereigns, the villages claims  on  their  own
behalf  may  not go forward.  And we conclude that  although  the
villages  may  bring  suit against the  Acting  Director  of  the
Division  in  his official capacity, they may not sue  the  state
directly.   Finally, we note that the states  argument  that  the
villages  seek an improper remedy is premature and  need  not  be
resolved  at this stage of the litigation.  We therefore  decline
to address it.
II.  FACTS AND PROCEEDINGS
          The  Native Village of Curyung typically has thirty  to
forty  children  who  have been removed from their  families  and
placed  in State custody.1  Between them, the Native Villages  of
Ekwok  and  Kwinhagak  and  Chevak Native  Village  usually  have
between  three  and  fourteen children in state  custody.   These
villages filed suit on their own behalf and as parens patriae  on
behalf  of  their  members  against  the  State  of  Alaska,  the
Department of Health and Social Services, Division of Family  and
Youth  Services, and Tom Cherian in his official capacity as  the
divisions  acting  director.  They alleged  that  the  defendants
          systematically violate federal and state laws as well as the
federal  and  state constitutions in the operation of  the  child
welfare system to the detriment of Native children and villages.
     A.   Specific Claims in Amended Complaint
          In  an amended complaint, the villages alleged that the
defendants fail to comply with the statutory requirements of  the
Indian  Child Welfare Act,2 the Multi-Ethnic Placement Act,3  the
Adoption Assistance Act (Adoption Act),4 four state statutes, and
the  Due  Process Clauses of the Federal and State Constitutions.
The  villages  sought to enforce the rights  protected  by  these
statutes  and  by  the  federal  and  state  constitutions  under
42  U.S.C.   1983, which allows for suit where the constitutional
or  statutory  rights  of  a citizen or  any  person  within  the
jurisdiction  of  the  United States have been  violated  by  any
person acting under color of state law.5
          The   villages   sought  declaratory  relief   and   an
injunction  in  the form of a superior court order  appointing  a
panel of experts, including Alaska Native members with experience
in  child  welfare  issues, with full access to  the  defendants,
their  records  and their personnel, to develop and  oversee  the
implementation  of a plan for reform, to ensure  that  defendants
protect  the constitutional and statutory rights of the plaintiff
tribes and their members.
          The  villages alleged that the defendants  violate  the
Indian  Child Welfare Act and state law by failing to give notice
to  the villages as required by the Act before taking custody  of
one of their children, and violate the Adoption Act and state law
by  failing  to  provide advance notice to the plaintiff  tribes,
parents,  foster  parents and children when it  moves  plaintiffs
children  who  are in State custody from placement to  placement.
The villages also alleged that the defendants placed children  of
plaintiff  tribes in settings that do not comply with the  Indian
Child  Welfare Act, in part because defendants consistently  fail
to  diligently  search for available relatives to  care  for  the
children of the plaintiff tribes.  The villages alleged that  the
defendants  violate the Multi-Ethnic Placement Act by failing  to
diligently recruit Native Alaskan foster families.  The  villages
also  maintained  that  the State does not have  enough  licensed
Native  foster families to provide homes for all of the plaintiff
tribes children, and that these children are routinely placed  in
emergency  shelters and group homes outside their villages.   The
villages  alleged that such placements violate the Adoption  Act,
which  requires that children be placed in care that  is  family-
like  and least restrictive.  The villages also alleged that  the
state  violates the Adoption Act by failing to provide plaintiffs
special needs children with proper care while in custody, failing
to  give preference to relatives when determining placements  for
plaintiffs children, failing to provide procedural protections to
the  parents  and  children whenever the State  moves  plaintiffs
children  from  one placement to another, and failing  to  ensure
that foster parents receive the services necessary to address the
needs of the plaintiffs children.
          The  villages alleged that the state and its  officials
practices  violate  four  state  statutes:  AS  47.10.080(s),  AS
          47.14.100(e), AS 47.05.065(4), and AS 47.14.115.
          Finally,   the  villages  alleged  that  [t]he   States
systemic  failure to comply with state and federal  laws  in  the
. . . child welfare system violates the due process rights of the
plaintiff  tribes  and  their  members,  as  guaranteed  by   the
Fourteenth  Amendment  to  the  United  States  Constitution,  by
Article I, Sections 1 and 7 of the Alaska Constitution, and by 42
U.S.C.  1983.
     B.   The Defendants Motions to Dismiss
          The defendants filed two motions to dismiss under Civil
Rule 12(b)(6).  They argued (1) that the villages lacked standing
under  a  parens patriae theory, (2) that the villages  were  not
proper plaintiffs in a  1983 action, (3) that the defendants were
protected  by  sovereign immunity, (4) that the federal  statutes
could  not  be enforced under  1983, and (5) that the state,  the
agencies,  and Cherian in his official capacity were  not  proper
defendants in a suit based on  1983.
     C.   The Superior Courts Ruling
          The  superior court granted the state and its officials
motions in part and denied them in part.  It addressed the states
five arguments, the plaintiffs requested remedy, and whether  res
judicata barred the villages claims.
          1.   Parens patriae
          The  court  first  addressed the villages  standing  to
bring  suit as parens patriae.  It noted that for a sovereign  to
bring  a  parens  patriae action, the sovereign  must  assert  an
injury  of a quasi-sovereign interest, and must establish that  a
sufficiently  substantial segment of its population is  affected.
The  court  found  that  the  United  States  Supreme  Court  has
established  that a sovereigns interest in the health  and  well-
being of residents is a legitimate quasi-sovereign interest.   It
reasoned  that  the villages interest in their  children  and  in
preserving their traditions through those children was inherently
linked  to the health, safety and welfare of the Villages members
and  therefore qualified as quasi-sovereign interest.  The  court
also   found  that  even  though  only  approximately  fifty-five
children  and their families are directly affected by the  States
actions,  those actions indirectly affected the villages  ability
to  maintain their integrity, which was something that  can  only
occur  through  the children of the Village. The court  therefore
found  that  the entire community was affected.  The  court  held
that  the  villages have parens patriae standing to pursue  their
claims.
          2.   Bringing suit under  1983
          The  superior court next addressed whether the villages
were  proper  plaintiffs under  1983, which creates  a  cause  of
action  for  violations of federal law.  The  court  noted  that,
according  to  the United States Supreme Court holding  in   Inyo
County  v. Paiute-Shoshone Indians,6 [a] tribe may not sue  under
1983  to  vindicate its sovereign rights.  Here the state  argued
that  because  only sovereigns may bring parens patriae  actions,
the villages action qualified as an effort to vindicate sovereign
rights and was therefore barred by Inyo County.
          The  superior court  noted the differences between  the
          right asserted in Inyo County and the right asserted here.  In
Inyo  County, the tribe claimed that sovereign immunity protected
it  from  a  district  attorneys efforts to  investigate  welfare
fraud.   The  tribe  therefore attempted to  use  its  status  to
undermine  an  otherwise  legal  investigation.  But  the   court
determined  that here the villages attempt to bring  a  claim  as
parens  patriae for the exact reason  1983 was enacted: to secure
private rights against the wrongful acts of the government.   The
court  therefore  determined that the villages suit  was  not  an
attempt to vindicate their sovereign rights, that Inyo County did
not  control  the  present  case, and  that  the  villages  could
therefore pursue their claim.
          3.   Sovereign immunity
          The   court  next  addressed  the  issue  of  sovereign
immunity.   It  indicated  that although  states  have  sovereign
immunity  in  their  own  courts they can  waive  that  immunity.
Moreover,  the court noted that the Supreme Court established  in
Ex  parte Young7 that sovereign immunity does not apply to  suits
against  defendants  in their official capacity  for  prospective
injunctive and declaratory relief.
          The court found that the state had waived its sovereign
immunity  for  the  Adoption Act and Multi-Ethnic  Placement  Act
claims.  It reasoned that because the Adoption Act and the Multi-
Ethnic  Placement Act were legislation authorized by the spending
clause of the United States Constitution, they were therefore  in
the  nature  of a contract because the state agree[d]  to  comply
with terms in exchange for federal funds.  Pointing to the states
waiver  of  sovereign immunity in all contract and quasi-contract
claims,8  the court concluded that the state had waived sovereign
immunity  with regard to claims brought to enforce these  federal
funding  contract[s].   The court determined,  further,  that  as
third-party beneficiaries, the villages had standing  to  enforce
those statutes.
          In  contrast, the superior court found that  the  state
had  not waived its sovereign immunity with regard to suits based
on the state statutes.  Moreover, because Ex parte Young does not
authorize actions against state actors being sued for a violation
of  state law, neither the state nor Cherian could be sued  under
those  laws.  The court therefore dismissed all of the state  law
claims.
          The  superior court found that the state had  also  not
waived  its  sovereign immunity with regard to the  Indian  Child
Welfare  Act.   The court therefore dismissed the claims  against
the  state  based on that statute.  However, the court determined
that  the villages could press their claims against Cherian since
Ex  parte  Young  authorizes claims against state  officials  for
violations of federal law.
          4.   Whether   the  federal  statutes  created   rights
               enforceable under  1983
               
          Having  disposed of  the sovereign immunity issue,  the
court  addressed the state and its officials next issue:  whether
the Indian Child Welfare Act, the Multi-Ethnic Placement Act, and
the  Adoption  Act  create rights that could  be  enforced  under
           1983.
          The  superior court concluded that  1912(a) and 1915(b)
of  the  Indian  Child  Welfare Act  create  enforceable  rights.
Because  the  [Indian  Child Welfare  Act]  does  not  contain  a
remedial  scheme  that is sufficiently comprehensive  to  exhibit
Congress  intent  to  preclude a remedy under   1983,  the  court
allowed the villages suits based on the Indian Child Welfare  Act
to go forward against Cherian.
          The  superior  court   dismissed all  of  the  villages
claims  that arose out of the Multi-Ethnic Placement  Act.   Even
though  the  statute creates mandatory duties in the  state,  the
court  found  that  because  the focus  is  system-wide  and  not
individual,  it  does  not  have  the  necessary  rights-creating
language for it to be enforced under  1983.
          The  court  also determined that some of  the  villages
Adoption   Act   claims   could  go  forward.   It   found   that
  622(b)(10)(B)(ii), 626(3), 675(1)(B), 675(5)(A), and  675(5)(C)
create  enforceable  rights.   However,  the  court  found   that
671(a)(19)  does not create an enforceable right that  the  State
give  preference to a childs relatives when seeking to place him.
It  reasoned  that  because  the  language  of  that  section  is
permissive and vague, it does not create a federal right and  its
enforcement   would  strain  judicial  competence.    The   court
therefore  denied the state and its officials motion  to  dismiss
with  regard to  622(b)(10)(B)(ii), 626(3), 675(1)(B), 675(5)(A),
and 675(5)(C) of the Adoption Act, but granted it with regard  to
 671(a)(19).
          5.   Proper defendants under  1983
          The  court  next  evaluated the  claims  based  on  the
federal and state constitutions.  Because  [t]he State is  not  a
person  for  purposes  of  1983, the court dismissed  the  claims
against the state.  But it allowed the claims against Cherian  in
his official capacity to go forward.
          6.   Plaintiffs remedy
          The  superior court then turned its  attention  to  the
remedy  the  villages were seeking.  The villages requested  that
the   court   appoint  a  panel  of  experts   to   oversee   the
implementation of a plan for reform and to ensure that defendants
protect  the constitutional and statutory rights of the plaintiff
tribes and their members.  The court noted that in Idaho v. Coeur
dAlene  Tribe  of  Idaho,9 the Supreme Court determined  that  Ex
parte Young, which generally allows suits against state officials
acting  in  their official capacities for prospective  injunctive
and declaratory relief, does not allow suits where the suit would
interfere  with  special sovereignty interests.   The  defendants
argued  that appointing a panel of experts to oversee  the  child
welfare system interfered with special sovereignty interests.
          The   superior  court  determined  that  the  sort   of
sovereignty interests at issue in Coeur dAlene were not at  issue
here.   In  Coeur  dAlene,  the Court  focused  on  the  specific
importance  of tidelands . . . [as] representative of the  states
sovereign  rights. In contrast, it held that welfare programs  do
not  implicate  inviolate  sovereign interests,  since  [w]elfare
programs  receive  funds  from the federal  government  and  must
          adhere to federal guidelines [and] [t]he state must be responsive
to  the  federal  government. Because the federal  government  is
involved  in state welfare programs, the superior court concluded
that  these  programs  are not a unique sovereign  right,  but  a
collaboration between the state and federal governments.
          7.   Res judicata
          Finally,  the court addressed the states argument  that
the  doctrine  of  res judicata barred the villages  claims.   It
determined  that because the State fail[ed] to plead  a  specific
example of a previous claim that would satisfy res judicata . . .
the plaintiffs claims are not barred.
     D.   Defendants Motion for Reconsideration
          The  defendants  filed  a  motion  for  reconsideration
expressing  some confusion over which claims had been  dismissed.
The  superior court clarified its holding as follows.  The  court
dismissed  the claims against the state that were  based  on  the
Indian Child Welfare Act, but allowed the villages to proceed  on
the  Indian  Child  Welfare  Act  claims  against  Cherian.    It
dismissed  the  Adoption Act claim that was based on   671(a)(19)
with  regard to all parties, but allowed the villages to  proceed
on  the  remaining  Adoption Act claims against  the  state,  the
agencies,  and  Cherian;  the claims  against  Cherian  could  go
forward  under   1983 and the claims against the  state  survived
because  the state, though not amenable to suit under  1983,  had
waived  its  sovereign  immunity by  accepting  funds  under  the
Adoption  Act.   The court further dismissed all  of  the  claims
based  on  the Multi-Ethnic Placement Act and all of  the  claims
based  on  state  statutes.  It also dismissed the constitutional
claims  as  they pertained to the state, but allowed them  to  go
forward against Cherian.
     E.   The States Petition
          The  state  filed a petition for interlocutory  review,
which  we  granted.  The state argues that the villages were  not
proper plaintiffs to bring claims under  1983, that the state was
immune  from  suit, that the Adoption Act does not create  rights
that are enforceable in actions based on  1983, that the remedial
provision  of  the  Indian Child Welfare Act  was  the  exclusive
remedy  available for violations of that act, and that the remedy
sought by the villages  the appointment of a panel of experts  to
oversee  the  states  child welfare system  violates  the  states
special sovereignty interests.
III. DISCUSSION
          This  petition  requires us to  resolve  three  related
questions  of federal law.  First, we must determine whether  the
villages  are  permissible plaintiffs in this case.   Second,  we
must  determine  who  are  the proper defendants  in  this  case.
Finally,  we  must determine whether the villages have  stated  a
cause  of  action under  1983: we must determine  whether  select
provisions  of the Adoption Act are enforceable under   1983;  in
addition, we must determine whether the remedial provision of the
Indian  Child  Welfare  Act precludes the  villages  reliance  on
 1983.
     A.   Standard of Review
          We review a Rule 12(b)(6) dismissal de novo.10  Motions
          to dismiss under Rule 12(b)(6) are viewed with disfavor11 and,
unless  it appears beyond doubt that the plaintiff can  prove  no
set  of facts in support of his claim which would entitle him  to
relief,  the  motion  should  be denied.12   In  determining  the
sufficiency of the stated claim, it is enough that the  complaint
set  forth  allegations of fact consistent with some  enforceable
cause of action on any possible theory.13
     B.   Are  the  Villages Persons Capable of  Pursuing  Claims
          Under  1983?
                     1.   Can an Alaska Native Village ever be  a
               person under  1983?
          42  U.S.C.   1983 creates a cause of action for  United
States   citizens   and   other  persons  under   United   States
jurisdiction  for violations of federal rights by persons  acting
under color of state law.14  The villages have brought suit under
  1983 alleging that the state systematically violates provisions
of  the  Adoption Act and the Indian Child Welfare Act.  Some  of
the  provisions  that  the state allegedly violates  involve  the
states  direct  obligations to the villages.   For  example,  the
villages  allege that the state systematically fails  to  provide
the  plaintiff [villages] with adequate notice about the  removal
of plaintiffs children from their homes and about the transfer of
children  who  are already in the States custody.   The  villages
bring these claims on their own behalf.
          The  villages bring other claims as parens  patriae  on
behalf  of their members.  They allege that the states placements
of  Native children fail to comply with the requirements  of  the
Adoption Act and the Indian Child Welfare Act.  For example, they
allege  that   the  state frequently transfers  children  between
placements, fails to search for available relatives to  care  for
the  villages children, and places the children in settings  that
do   not  comply  with  the  Indian  Child  Welfare  Act.   These
placements, the villages argue, harm the villages children.
          The  state argues, relying on the United States Supreme
Courts  opinion in Inyo County v. Paiute-Shoshone  Indians,  that
Alaska  Native  villages are not persons for  purposes  of   1983
litigation and therefore may not bring suit under  1983.
          Inyo   County   stemmed  from  a   California   countys
investigation  of  Native  American  tribe  members  for  alleged
welfare  fraud.15   The  tribe members  being  investigated  were
employees  of  the tribes casino, which was wholly owned  by  the
tribe.16  In their applications for state welfare benefits, these
employees  failed  to  report alleged casino  earnings.17   After
seeking  and  failing to get the tribe to provide the  employment
records,  the county executed a search warrant on tribal property
and  seized the records.18  Some months later, the county  sought
employment records of additional employees.19  In this  instance,
the   tribe   indicated  that  it  would  release   the   records
voluntarily.   But  because  its privacy  policy  prohibited  the
release  of employment records without an employees consent,  the
tribe  asked  the county to provide redacted copies of  the  last
page   of  the  employees  welfare  applications  which  informed
applicants that their employment records were subject  to  review
by  county  officials.20  When the district attorney  refused  to
          provide the redacted pages, the tribe, anticipating another
search warrant, filed suit in federal district court against  the
county   and  various  county  officials.21   The  tribe   sought
injunctive  and  declaratory  relief  and  damages  under   1983,
alleging  that  the  county had violated and  would  continue  to
violate the tribes right to self-government.22
          Before determining whether the county had the authority
to  execute the search, the Supreme Court addressed the  question
whether  a  tribe  qualifies as a claimant  a person  within  the
jurisdiction  of  the United States  under   1983.23   The  Court
determined that it did not.24   The Court first noted the countys
claim that there is a longstanding interpretive presumption  that
person does not include the sovereign.25  The Court rejected this
argument.  It noted that in other contexts it has recognized  the
qualification  of  a  sovereign as a person who  may  maintain  a
particular  claim  for  relief.26  And  it  indicated  that   the
presumption that identical words used in different parts  of  the
same  act . . . have the same meaning was not rigid and that  the
meaning  of the same words well may vary to meet the purposes  of
the law.27
          The  Court  next  considered the tribes  argument  that
  1983  should  be  broadly construed.   The  tribe  argued  that
Congress  intended   1983  to provide  a  powerful  civil  remedy
against  all  forms of official violation of federally  protected
rights.28 Given the particular vulnerability of Indian tribes  to
infringement of their federally protected rights by states,29 the
tribe  maintained  that  1983 should be understood  to  encompass
tribal  claims  that  a state had infringed  a  tribes  sovereign
immunity.  The Court was not persuaded.  The Court observed  that
[s]ection  1983  was  designed to secure private  rights  against
government encroachment.30  And it reasoned that a private person
would  have  no right to immunity from an appropriately  executed
search  warrant based on probable cause.31  The Court  emphasized
that  the  purpose  of   1983 was not  to  advance  a  sovereigns
prerogative   to  withhold  evidence  relevant  to   a   criminal
investigation.32  The Court therefore concluded that the Tribe may
not  sue  under   1983 to vindicate the sovereign right  it  here
claims.33
          The state argues that the import of Inyo County is that
tribes   and by extension Alaska Native Villages34  may  not  sue
under   1983  to vindicate sovereign rights and that all  of  the
claims  asserted  by  the  villages  are  sovereign  based.   The
villages  argue  in  response that Inyo County merely  prohibited
tribes  from  suing to vindicate sovereign rights, and  does  not
prevent  them  from bringing parens patriae claims on  behalf  of
their members.
          We  agree  with  the villages.  We find it  significant
that  the Court did not credit the governments argument that  the
mere  presence  of  the  word person excludes  sovereigns.35   In
addition,  we  note  that  the Court appears  to  have  carefully
limited  its  holding: the Court specified that in the  situation
here  presented, the Tribe does not qualify as a person  who  may
sue under  1983;36 and the Court ruled that the Tribe may not sue
under   1983  to vindicate the sovereign right it here  claims.37
          This language strongly suggests that the Court intended to leave
open  the  possibility  that  villages  might  under  the  proper
circumstances be able to bring suit under  1983.  And it suggests
that  the relevant criterion for determining whether the villages
may  proceed  is  the nature of the right the  villages  seek  to
vindicate.
          The  state argues against adopting this reading of Inyo
County, pointing to Justice Stevenss concurring opinion.  Justice
Stevens  agreed  that the tribe lacked a claim.  But  he  reached
this  conclusion not because he thought that the  tribe  in  that
case  failed  to qualify as a person under  1983   the  majoritys
view  but rather because the countys alleged infringement of  the
Tribes  sovereign  prerogatives did  not  deprive  the  Tribe  of
rights, privileges, or immunities secured by the Constitution and
laws  within  the  meaning  of  1983.38   The  state  reads  this
concurrence as being based on the premise that the Courts opinion
held  that tribes could never be persons under  1983. Relying  on
Justice  Stevenss understanding of the Courts holding, the  state
insists  that  any  narrower reading  of  Inyo  County  would  be
untenable.
          But  it  seems  questionable whether  Justice  Stevenss
concurrence necessarily reflects the sweeping view of the  Courts
opinion  attributed  to  him by the state.   And  in  any  event,
Justice  Stevenss individual concurrence hardly  qualifies  as  a
definitive  interpretation of what the Court  actually  meant  to
hold.  Given the Courts outright rejection of the position of the
government in Inyo County and the Courts careful qualification of
its  holding,  we  think the better reading is that  Inyo  County
simply  precludes tribes from using  1983 to vindicate their  own
sovereign  rights.  We do not think it stands for the proposition
that tribes may never be persons for purposes of asserting claims
under  1983.39
          Because  we conclude that Inyo County leaves  open  the
possibility   that  tribes  may  bring   1983  claims   in   some
circumstances, we must determine whether, under the circumstances
of  the  present case, the villages may press their  claims.  The
villages  assert two sorts of claims.  First, the villages  bring
claims  as  parens  patriae on behalf of their members,  alleging
that  violations of the rights of their members harm the villages
as  a  whole.   Second, the villages bring claims  on  their  own
behalf,  alleging, for example, that the failure  to  notify  the
villages  when taking member children into state custody violates
the  direct rights of the villages as secured by the Indian Child
Welfare Act.
          2.   Are  the  villages  here  asserting  their  parens
               patriae claims as persons?
          The  doctrine of parens patriae allows a state to bring
suit to protect its interests in matters of public concern.40  In
order to determine which claims qualify as parens patriae claims,
the  Supreme  Court  has  distinguished between  sovereign,  non-
sovereign,  and quasi-sovereign interests; parens patriae  claims
may only be brought to vindicate quasi-sovereign interests.41
          Sovereign  interests include the exercise of  sovereign
power   over   individuals  and  entities  within  the   relevant
          jurisdiction, as well as the demand for recognition from other
sovereigns.42  This is the sort of interest that was at issue  in
Inyo   County.    Non-sovereign  interests   include   a   states
proprietary  interests as well as the interests a state  protects
when, acting as no more than a nominal party, it seeks to protect
the interests of private parties in court.43
          Quasi-sovereign interests, which a state may protect in
court  through the mechanism of parens patriae actions, are those
interests that the State has in the well-being of its populace.44
In  a parens patriae action, a state may not simply aggregate the
claims  of  its citizens.45  Rather, the state must  be  able  to
articulate an injury to the well-being of the state as a whole or
to  a  sufficiently  large  segment of its  population,  and  the
overall  injury  must be more than the mere sum of  its  parts.46
Although in theory this requirement poses a limitation on  parens
patriae  suits,  in practice, the courts have generally  found  a
sufficient  interest to exist where the aggregation of individual
interests creates even non-quantifiable effects upon segments  of
the population.47  Further, the fact that individual parties could
have  brought suit to vindicate their rights does not  deprive  a
state  of parens patriae standing.48  Similarly, the fact that  a
statute creates a private right of action of individuals does not
preclude  a sovereigns ability to bring a parens patriae claim.49
In  such  actions, the state merely asserts that in  addition  to
harming its citizens individually, the offending party has harmed
the  overall  interests  of the state.  For  example,  the  Third
Circuit  has  held that because the state generally has  a  broad
interest in protecting its citizens from civil rights violations,
a  state  may bring an action in parens patriae to enforce  civil
rights statutes, even though private individuals would have had a
cause  of  action under the same statutes.50  Because the  states
interests  will usually not be completely addressed by individual
lawsuits  brought by aggrieved individuals, courts  have  allowed
the state to sue as parens patriae.51
          The state argues that by definition only sovereigns may
assert  parens patriae claims.  It therefore concludes that  Inyo
County bars such claims:
          The  Villages cannot have it both  ways.   If
          these  are individual claims then individuals
          must  bring them, not the Villages acting  in
          parens patriae.  If these are quasi-sovereign
          claims,  then  the  Native Villages  are  not
          persons  that  can  bring  a   section   1983
          action.
The  state has misunderstood the nature of parens patriae claims.
While  it  is true that the sovereign must articulate an interest
that  is  more than the mere aggregate of the individual  claims,
and  while  it  is  true that only sovereigns  may  bring  parens
patriae claims, the injury the sovereign seeks to remedy  is  not
to its sovereignty, but rather to its larger population.
          We  think  this injury is remediable under  1983,  even
where  the  plaintiff is a sovereign.  In Inyo County, the  Court
held  that   1983  was  not  designed  to  advance  a  sovereigns
prerogative  to  withhold evidence where  the  sovereign  claimed
          immunity from an appropriately executed search warrant based on
probable  cause.52   Rather, the Court  held,  Section  1983  was
designed    to   secure   private   rights   against   government
encroachment.53   We  think that the injury a population  suffers
when  the  rights  of  some  of  its members  are  systematically
violated  falls  within  the sorts of  injuries  that   1983  was
enacted  to remedy.  We therefore think that the logic of  parens
patriae claims supports a ruling that villages may sue as  parens
patriae under  1983.
          This conclusion is borne out by the case law.  Although
the  courts  are divided over whether sovereigns may  bring  non-
parens  patriae  claims in their own right under   1983,54  where
sovereigns have pressed  1983 claims using the doctrine of parens
patriae,  several courts have allowed those claims to go forward.
For example, in Support Ministries for Persons with Aids, Inc. v.
Village of Waterford, the District Court allowed the state of New
York  to  bring  suit as parens patriae under   1983  to  redress
discrimination encountered by persons with AIDS.55  Similarly, in
Pennsylvania v. Glickman, the court permitted the state to sue as
parens patriae under  1983 to remedy racial discrimination in the
hiring  of firefighters.56  And in Pennsylvania v. Flaherty,  the
court  allowed  Pennsylvania to bring suit as parens  patriae  to
remedy  civil rights deprivations, finding jurisdiction under  28
U.S.C.  1343, the jurisdictional counterpart of  1983.57
          Finally,  in  Pennsylvania  v.  Porter,  the  state  of
Pennsylvania  sued  a  Pennsylvania borough,  the  mayor  of  the
borough,  the  police chief, a police officer, and various  other
borough officials.58  The state alleged that the police officer,
          with   the   instigation,  acquiescence   and
          ratification   of  the  Mayor  and   Council,
          engaged in an extended pattern or practice of
          conduct  denying  persons  lawfully  in  [the
          Borough]  their constitutional rights  to  be
          free  from  physical violence,  mistreatment,
          threats,  harassment, illegal  determination,
          illegal  arrests,  and illegal  searches  and
          seizures.[59]
          
The  state  brought  suit as parens patriae under   1983.60   The
borough  argued  that the state was not a proper plaintiff  under
1983 or under 28 U.S.C.  1343, the jurisdictional counterpart  to
 1983.61  The Third Circuit determined that where a state sues as
parens patriae to remedy civil rights violations,
          [t]he  question  is  not whether  either  the
          fourteenth amendment or section 1983 protects
          the  Commonwealth  neither does  but  whether
          the  Commonwealth is an appropriate plaintiff
          in   an   action  seeking  to   prevent   the
          infliction  of  constitutional violations  on
          the persons the amendment and the statute  do
          protect.[62]
          
After noting multiple reasons that the state should not be forced
to  rely upon the happenstance of suits by individual victims  of
constitutional violations,63 the court concluded that
          the  Commonwealth is in this  suit  advancing
          significant sovereign interests of its own in
          the   prevention  of  future  violations   of
          constitutional  rights of  its  citizens,  in
          circumstances  in which it cannot  reasonably
          anticipate  that  private  enforcement   will
          achieve  the  protection of  those  sovereign
          interests.  Any  description  of   a   parens
          patriae  remedy, even the narrowest, includes
          the   state   of   facts   alleged   in   the
          Commonwealths complaint.[64]
          
The  court  therefore concluded that Pennsylvania  was  a  proper
plaintiff to vindicate the rights  1983 was designed to protect.
          We  find  the  reasoning of the  Third  Circuit  to  be
persuasive.   In  the present case, the villages  bring  suit  as
parens  patriae to prevent future violations of the Adoption  Act
and  the  Indian Child Welfare Act.  The provisions they seek  to
enforce  as parens patriae affect the well-being of the  villages
families and children.  As the superior court concluded, the well-
being  of individual families and children is inextricably  bound
up  with the villages ability to maintain their integrity,  which
is  something  that can only occur through the  children  of  the
Village.  Under these circumstances, if the Adoption Act and  the
Indian  Child Welfare Act are otherwise enforceable  under   1983
then  the villages may, as parens patriae, bring suit to  enforce
those statutes.
          3.   Are  the  villages acting as persons in  asserting
               their direct  1983 claims?
          Whether  Inyo County precludes the villages from  suing
under   1983  to  vindicate rights claimed  by  the  villages  as
villages  is  a  closer  question.  The superior  court  did  not
expressly consider this issue, but it appears to have allowed the
villages  to go forward with the claims they press on  their  own
behalf.  The state argues that the tribal notification provisions
apply  to the villages in their sovereign status and that  claims
alleging their violation are therefore foreclosed by Inyo County.
          We  find the states argument to be persuasive.  As  the
state  maintains, the notification provisions of the Indian Child
Welfare  Act were enacted to protect tribes sovereign  rights  to
exercise  jurisdiction  over  and  to  participate  in  decisions
concerning the welfare of their children  whether their  children
need  to be removed from their natural parents, whether they need
to  be  placed in foster homes, and whether their ties  to  their
parents  need to be severed.65  The villages right to participate
in  deciding such issues is the right of a sovereign.  Under  the
reasoning  of  Inyo County these rights may not  be  enforced  by
villages under  1983.66  Inyo County requires us to conclude that
the villages may not bring these claims on their own behalf under
1983.
     C.    Are the Villages Claims Properly Brought Against These
Defendants?
          1.    Section  1983  does not authorize  suits  against
          states.             The superior court observed that States have
sovereign  immunity in their own courts, and that  Congress  does
not  have  the power to subject non-consenting states to  private
suits  in state court.  But the superior court reasoned  that  if
the state of Alaska had waived its sovereign immunity for any  of
the  villages claims, the state would be a proper defendant.  The
superior  court  noted  that  AS  09.50.250  waives  the   states
sovereign immunity for contract claims.  The court observed  that
the  state  of  Alaska entered into a contract  pursuant  to  the
Adoption Act.  And it reasoned that third-party beneficiaries  of
that contract could sue the state to enforce that contract.
          But  under  our  understanding of  the  Supreme  Courts
approach to  1983, the states waiver of sovereign immunity   even
if  it  would  apply  in the present case, a  question  which  we
decline  to  decide  does not control the outcome in  this  case.
The  Supreme  Court has unequivocally held that  states  are  not
proper defendants under  1983.67  The reason that  1983 actions do
not  lie against a State is not sovereign immunity, which, as the
Court has noted, can be waived.68  Rather,  1983 creates no remedy
against  a  State regardless of any purported waiver of sovereign
immunity.69   Because the Court has determined that Congress  did
not  intend  1983 to create a remedy against states,70 the states
alleged  waiver of sovereign immunity is, simply put, irrelevant.
The villages therefore may not bring suit under  1983 against the
state  to enforce any rights that the Adoption Act and the Indian
Child Welfare Act may create.
          We  note  that  the  superior  court  appears  to  have
concluded  that although the villages could not bring suit  under
1983  to enforce the Adoption Act, the states waiver of sovereign
immunity  in  AS 09.50.250 creates a cause of action against  the
state  for  contract violations and the suit could  therefore  go
forward  under AS 09.50.250.  But the superior court has confused
two  distinct requirements for suing the state.  It is true that,
in  order for a party to sue a state, the party must be  able  to
point  to  a waiver of sovereign immunity.  But a bare waiver  of
sovereign immunity is not sufficient.  The party may only proceed
if  there  is  also  a  cause of action.  Although  AS  09.50.250
provides  the requisite waiver of sovereign immunity, it  creates
no  cause  of action.  A party wishing to take advantage  of  the
states  waiver of sovereign immunity must be able to rely  on  an
independent cause of action.  Normally parties who sue the  state
for  breach of contract rely upon state common and statutory  law
as  the  bases  for their claims.  But in the present  case,  the
villages  have relied solely upon the cause of action created  by
 1983.  This cause of action will not support a claim against the
state,  regardless of whether the state has waived its  sovereign
immunity.  For purpose of deciding the present petition, we  need
not  consider  whether the villages might be  able  to  plead  an
ordinary  contract  claim  against the state  for  violating  the
Adoption Act; the villages neither pled nor briefed such a  cause
of action and, given the complicated intersection between federal
statutory  and state common law that such a claim would  involve,
we decline to consider it in a vacuum.
          2.   The  villages may sue Tom Cherian in his  official
          capacity     for     prospective     injunctive     and
               declaratory relief.
               
          Although   1983  does  not create  a  cause  of  action
directly  against states, it expressly creates a cause of  action
against persons who violate federal law under color of state law.
The  villages  named  not  only the state  and  the  division  as
defendants in this action; they also named defendant Tom  Cherian
in  his capacity as the divisions acting director.  Because  1983
creates  a  cause of action against state officials acting  under
color  of  state  law,  the villages claims  may  proceed  as  to
Cherian,  provided  that  Cherian is not protected  by  sovereign
immunity.
            States generally possess sovereign immunity from suit
and  may  not  be  sued absent a waiver of sovereign  immunity.71
Ordinarily, the Supreme Court has held, suing state officials  in
their  official capacities for damages amounts to the same  thing
as  suing  states  directly; such suits  are  therefore  normally
barred  by  a states sovereign immunity.72  But in actions  filed
under   1983,  the  Court has recognized, under the  doctrine  it
first  established in Ex parte Young, that state officials acting
in  their official capacity may be sued for violations of federal
statutory  or constitutional rights when the claims against  them
seek   only   prospective  declaratory  or  injunctive  relief.73
Because,  under  Ex  parte Young, a state  officer  who  violates
federal law or the federal constitution is presumed to be  acting
without the authority of the state, such suits are simply  deemed
not  to  be  suits against the state, so they do not implicate  a
states sovereign immunity.74
          As  a result, even if a state has declined to waive its
sovereign  immunity, a party injured by the actions  of  a  state
official is not without remedy.  The party may seek to enjoin the
actions  of  the  state official or may seek a court  declaration
that   the  acts  violate  federal  law  or  the  United   States
Constitution.   And  as  a  practical matter,  either  remedy   a
declaratory  judgment  or  an  injunction  directed  against  the
official   is  functionally the same as an injunction prohibiting
the state itself from doing those acts.
          The  villages here do not seek damages in  the  present
case.   Rather,  they  seek  injunctive and  declaratory  relief.
Their  claims  against  Cherian  in  his  official  capacity  are
therefore authorized by  1983 and are not prohibited by sovereign
immunity.  They may therefore go forward.
     D.   Do the Villages Assert Violations of Rights Enforceable
Under  1983?

          Having   established  that  the  villages  are   proper
plaintiffs to bring their parens patriae claims and that  Cherian
is  the  proper  defendant in this action, we must next  consider
whether  the villages have stated a cause of action under   1983.
42 U.S.C.  1983 provides in relevant part:
          Every person who, under color of any statute,
          ordinance, regulation, custom, or  usage,  of
          any  State  or Territory or the  District  of
          Columbia,   subjects,   or   causes   to   be
          subjected,  any citizen of the United  States
          or   other  person  within  the  jurisdiction
          thereof  to  the deprivation of  any  rights,
          privileges,  or  immunities  secured  by  the
          Constitution and laws, shall be liable to the
          party  injured in an action at law,  suit  in
          equity,   or  other  proper  proceeding   for
          redress[.][75]
  Where  a  plaintiff shows that a statute creates an enforceable
right,  there  is  a  rebuttable presumption that  the  right  is
enforceable  under   1983.76   If  the  rights-creating   statute
forecloses  an  action  under   1983,  either  expressly  or   by
implication, the plaintiffs claim is barred.77
          In  order  to bring suit under  1983, a plaintiff  must
show  the existence of an unambiguously conferred right  that  is
protected by federal laws or the United States Constitution.78  In
other  words, a plaintiff must assert the violation of a  federal
right,  not merely a violation of federal law.79  In Blessing  v.
Freestone,  the  Supreme  Court set out  a  three-part  test  for
determining whether this showing had been made:
          First,  Congress must have intended that  the
          provision  in question benefit the plaintiff.
          Second,  the plaintiff must demonstrate  that
          the right assertedly protected by the statute
          is  not  so  vague  and  amorphous  that  its
          enforcement would strain judicial competence.
          Third,  the statute must unambiguously impose
          a binding obligation on the States.  In other
          words,  the  provision  giving  rise  to  the
          asserted  right must be couched in mandatory,
          rather than precatory, terms.[80]
          
More recently, in Gonzaga University v. Roe, the Court noted that
there  had  been some confusion over the Blessing test  and  that
some courts had misunderstood Blessing as allowing plaintiffs  to
enforce  a  statute  under  1983 so long as the  plaintiff  falls
within  the general zone of interest that the statute is intended
to  protect.81  To rectify this misunderstanding, the  Court  has
clarified:   1983 may only be used where Congress  intended  that
the  substantive statute at issue actually confer rights  on  the
plaintiff.   Merely  conferring broader  or  vaguer  benefits  or
interests  does not render a statute enforceable under  1983.82
          The  state  argues here that the superior  court  erred
when  it found that  675(1)(B), 675(5)(A), and 675(5)(C)  of  the
Adoption  Act create enforceable rights. And it argues  that  the
remedial provisions of the Indian Child Welfare Act foreclose  an
action under  1983.83  We address these arguments in turn.
          1.   The Adoption Act claims
          In  1980  Congress passed the Adoption  Assistance  and
Child  Welfare  Act (Adoption Act).84  The Act  provides  federal
funds  to  assist  states in the conduct of their  child  welfare
services,85 and to encourage permanent homes for children, either
with  their own or adoptive parents.86  In order to receive funds
under  these acts, states must submit a plan to the Secretary  of
Health  and Human Services for approval by the Secretary.87   The
plan must include a number of elements.88
               a.   Adoption Act generally
          The  villages  claim  that Congress  passed  a  statute
specifically designed to protect the rights of beneficiaries  [of
the  Adoption Act] to enforce the required contents  of  a  State
plan.    To  support this claim, the villages point to a recently
adopted  provision  of the Act, 42 U.S.C.   1320a-2.   But  their
reading of this provision as a rights-creating directive  is  too
strong.
            In Suter v. Artist M., the Supreme Court held that 42
U.S.C.  671(a)(15), a provision not at issue in the present case,
did  not create rights that were enforceable under  1983.89   The
Courts  opinion  included  language broadly  suggesting  that  no
spending clause statute could create rights enforceable by third-
party  beneficiaries  if  the statute was  written  so  that  the
receipt of federal funds appeared to be conditioned only upon the
approval of a plan by the Secretary of Health and Human Services.90
The  effect  of  this  holding  threatened  to  preclude  private
enforcement  of virtually all provisions included in  legislation
that   required   states  to  submit  plans  that   met   federal
specifications.  In response, Congress enacted 42 U.S.C.  1320a-2
which provides:
          In  an  action brought to enforce a provision
          of  this chapter, such provision is not to be
          deemed unenforceable because of its inclusion
          in  a  section  of this chapter  requiring  a
          State   plan   or  specifying  the   required
          contents  of a State plan.  This  section  is
          not  intended to limit or expand the  grounds
          for  determining the availability of  private
          actions  to  enforce State plan  requirements
          other  than  by overturning any such  grounds
          applied  in  Suter v. Artist M., 112  S.  Ct.
          1360 (1992), but not applied in prior Supreme
          Court      decisions     respecting      such
          enforceability;  provided, however, that this
          section  is not intended to alter the holding
          in Suter v. Artist M. that section 671(a)(15)
          of this title is not enforceable in a private
          right of action.
          The  language of this provision, as well as  subsequent
interpretations of it,  makes it clear that the statute  did  not
make all the provisions of Title 42  the section of the U.S. Code
that  requires  a  number of state plans  enforceable  privately.
Rather,   it  merely foreclose[d] the refusal to find  a  federal
right enforceable under  1983 because the statutory provision may
be included in a section requiring a State plan or specifying the
required  contents  of such a plan.91  In other  words,   1320a-2
returned the law to the status quo ante; after  1320a-2, just  as
before  Suter,  a  plaintiff seeking to enforce  a  provision  of
spending clause legislation must show that the provision at issue
          unambiguously confers a private right enforceable pursuant to
 1983 under the Blessing framework.92
          Because   1320a-2 does not resolve this issue, we  must
consider   whether   the  provisions  the  villages   rely   upon
  675(1)(B), 675(5)(A), and 675(5)(C)  create rights that may  be
enforced under  1983.
               b.   Adoption Act  675(1)(B)
          Section  671(a)(16)  establishes that  to  qualify  for
approval, a state plan must provide for the development of a case
plan  .  .  .  for  each child receiving foster care  maintenance
payments under the State plan.93  Section 675(1)(B) provides that
the  required case plan must include, [a] plan for assuring  that
the  child receives safe and proper care and . . . [must] address
the  needs of the child while in foster care.94 These provisions,
read  in conjunction, create an enforceable right to a state plan
that provides for the development of individual case plans.95
          The  requirement that the state must  have  a  plan  to
develop  individual  case  plans satisfies  the  Blessing/Gonzaga
test.   First,  it  was  clearly designed to  benefit  individual
children in foster care: the case-plan requirement is directed at
individual  children,  and  each  child  receiving  foster   care
payments  is entitled to a case plan.  The state-plan requirement
ensures  that each child will receive a case plan.   Second,  the
right  to a state plan is not vague or amorphous.  Either a state
has a plan or it does not; this right is not too imprecise to  be
enforceable.   Finally,   671(a)(16) is unambiguously  mandatory.
The  title  of   671(a)  is  Requisite features  of  State  plan.
Requisite   is   defined  by  Websters  Third  New  International
Dictionary  as, required . . . indispensable.96  The introductory
language is also clearly mandatory.  It provides that [i]n  order
for a State to be eligible for payments under this part, it shall
have  a  plan approved by the Secretary which . . . (16) provides
for the development of a case plan.97 The definition of case plan
is equally mandatory.  Section 675(1) states that [t]he term case
plan  means  a  written  document which  includes  at  least  the
following  . . . (B) A plan for assuring . . . that services  are
provided to the parents, child, and foster parents in order to  .
.  . address the needs of the child.  Because  675(1)(B), read in
conjunction  with   671(a)(16), meets  the  requirements  of  the
Blessing/Gonzaga  test,  we hold that those  sections  create  an
enforceable  right  to have a case plan.  Under   675(1)(B),  the
plan  must  include assurances that the child receives  safe  and
proper  care,  that services are provided to the parents,  child,
and  foster  parents in order to improve the  conditions  in  the
parents home, and that it address the needs of the child while in
foster care.98
          Although  we  conclude that  671(a)(16)  and  675(1)(B)
create an enforceable right to a state plan that provides for the
development  of  individual  case  plans  addressing  the  topics
spelled  out  in  675(1)(B), we do not read these  provisions  as
guaranteeing  that an individual case plan meeting all  requisite
elements will actually be provided in any particular case.  As we
read  these  provisions, the enforceable  right  they  create  is
systematic:  it ensures that the state will develop,  adopt,  and
enforce  a  statewide system designed to provide each family  and
child  with  a  case plan that meets the statutes specifications;
but  it  does  not give all parents and children  a  case-by-case
guarantee of a satisfactory plan.  In other words, the Act allows
the  villages to sue to ensure that the state adopts and enforces
a  plan  that  realistically strives to provide all children  and
families  with  compliant plans; but it  does  not  allow  claims
simply  alleging that the state failed to provide  a  plan  in  a
particular case or that the plan it provided was unsatisfactory.
               c.   Adoption Act  675(5)(A) and (C)
          Sections 671(a)(16) and 622(b)(10)(B)(ii) require  that
a  state plan provide, in addition to a case plan for each child,
a case review system.  Section 675(5) defines case review system.
Under  675(5)(A) a case review system is
          a  procedure for assuring that  .  .  .  each
          child  has  a case plan designed  to  achieve
          placement in a safe setting that is the least
          restrictive  (most  family  like)  and   most
          appropriate  setting available and  in  close
          proximity  to  the  parents home,  consistent
          with  the best interest and special needs  of
          the child[.][99]
          
And  under   675(5)(C)  the  case review  system  must  create  a
procedure for ensuring that
          with  respect to each . . . child, procedural
          safeguards  will be applied . . .  to  assure
          each   child   in  foster  care   under   the
          supervision  of  the State  of  a  permanency
          hearing  to be held, in a family or  juvenile
          court  or  another court (including a  tribal
          court)  of competent jurisdiction, or  by  an
          administrative body appointed or approved  by
          the  court, no later than 12 months after the
          date  the child is considered to have entered
          foster  care  . . . (and not less  frequently
          than  every  12 months thereafter during  the
          continuation  of foster care), which  hearing
          shall  determine the permanency plan for  the
          child   that   includes   whether,   and   if
          applicable  when, the child will be  returned
          to  the  parent, placed for adoption and  the
          State will file a petition for termination of
          parental   rights,  or  referred  for   legal
          guardianship,  or (in cases where  the  State
          agency  has documented to the State  court  a
          compelling  reason  for determining  that  it
          would  not  be in the best interests  of  the
          child   to  return  home,  be  referred   for
          termination of parental rights, or be  placed
          for   adoption,  with  a  fit   and   willing
          relative, or with a legal guardian) placed in
          another  planned permanent living arrangement
          and, in the case of a child described [placed
          out   of  state],  whether  the  out-of-State
          placement continues to be appropriate and  in
          the  best interests of the child, and, in the
          case of a child who has attained age 16,  the
          services needed to assist the child  to  make
          the   transition   from   foster   care    to
          independent    living;     and     procedural
          safeguards shall also be applied with respect
          to  parental rights pertaining to the removal
          of the child from the home of his parents, to
          a  change in the childs placement, and to any
          determination affecting visitation privileges
          of parents[.][100]
          
As  with   675(1)(B),  we  conclude that  these  sections  create
enforceable   rights  under  the  Blessing/Gonzaga   test.   Both
provisions  are  expressly directed toward  individual  children.
Section  675(5)(A)  requires that procedures  be  established  to
ensure that each child has a case plan.  Where  675(1)(B) creates
a  right  to  have  a  case plan and that  specific  elements  be
addressed in the case plan,  675(5)(A) creates procedural  rights
to ensure that the childs substantive rights under  675(1)(B) are
met.   Similarly,   675(5)(C) requires that the  state  establish
procedures for ensuring that the necessary hearings be  held  and
that  children  not  be  moved  or placed  without  the  required
hearings.   These  sections  satisfy  the  first  prong  of   the
Blessing/Gonzaga test.  They also satisfy the second prong of the
test.   These  sections require that procedures  be  established;
this requirement, like the requirement that the state must have a
plan  to  develop  individual case plans, is  not  too  vague  or
amorphous  to  be  enforceable.   Finally,  these  sections   are
mandatory;  they  therefore  satisfy  the  third  prong  of   the
Blessing/Gonzaga test.
          But  while we agree with the superior court that  these
sections  create  enforceable rights, we add the same  cautionary
note  we  sounded  with  respect to   675(1)(B):  We  view  these
sections  as  describing an enforceable right that is  systematic
a  right to a case review system that complies with the statutory
specifications.  This right does not imply the further  right  to
insist  on  case-by-case compliance; nor does it create  a  case-
specific  right to sue for lack of compliance.  These  provisions
give  the  state leeway to determine what case-review  procedures
are  necessary  to protect the rights of individual  parents  and
children;  they  do  not  authorize suits  alleging  that  better
procedures could have been used on specific occasions.
          2.   Indian Child Welfare Act
          The  state does not contest the villages claim that the
Indian  Child  Welfare  Act creates rights that  are  enforceable
under   1983.  Rather, the state argues that because  the  Indian
Child Welfare Act provides a remedy for violations of some of its
provisions,  that  remedy  displaces  any  remedies  that   would
otherwise  be  available under  1983.  The state  relies  on  the
Supreme  Courts  repeated assertion that once a party  has  shown
that  a  right  has  been  deprived under  color  of  state  law,
[section]  1983  provides a remedial cause of action  unless  the
state  actor demonstrates by express provision or other  specific
evidence  from  the  statute  itself that  Congress  intended  to
foreclose such private enforcement.101
          In  Middlesex County Sewerage Authority v. National Sea
Clammers Assn,102 Smith v. Robinson,103 and, most recently, in City
of  Rancho  Palos  Verdes v. Abrams,104  the  Supreme  Court  has
explained the factors that are necessary for determining  whether
Congress  intended  to foreclose the remedies that  are  normally
available  under  1983.  The Court has established that  Congress
may  explicitly preclude reliance on  1983.105  But Congress  may
also implicitly withdraw  1983 as a remedy.106
          The Court has held that where a rights-creating statute
also  includes  its own statutory remedy, the statute  creates  a
presumption that Congress intended that  1983 not be available to
remedy  violations of the right: [t]he provision of  an  express,
private  means of redress in the statute itself is ordinarily  an
indication  that  Congress did not intend to leave  open  a  more
expansive  remedy under  1983.107  But this presumption  is,  the
Court  has  held,  rebuttable. The ordinary  inference  that  the
remedy  provided  in  the  statute is  exclusive  can  surely  be
overcome  by  textual indication, express or implicit,  that  the
remedy is to complement, rather than supplant,  1983.108
          These  decisions  suggest  three  relevant  factors  to
consider  in  determining  whether a statutory  remedy  displaces
  1983.  First, where a statute provides its own remedy, a  court
should  consider whether the remedy would normally  be  available
under   1983  or whether, instead, the remedy expands upon  those
available under  1983.109  Second, a court should determine whether
the statutory remedy creates procedural limitations that are more
stringent than those provided in  1983.110  In all three  of  the
cases  in  which  the  Court has held  that  a  statutory  remedy
displaces   1983, the Court has stressed that the procedures  for
enforcing  the  statutory  remedy  were  more  limited  than  the
procedures under  1983.111  Where a plaintiffs reliance on   1983
would  undermine the statutory remedy or would allow a  plaintiff
to avoid the limitations created by a statutory remedy, the Court
has  indicated  that  1983 should be held to have been  displaced
that  limitations upon the remedy contained in  the  statute  are
deliberate and are not to be evaded through  1983.112  Finally, a
court  should consider whether allowing a party to proceed  under
1983  would be inconsistent with the compromises reached  in  the
statute.113
          Applying   this  three-factor  test  to  the   remedial
provisions  of  the  Indian Child Welfare Act convinces  us  that
Congress intended to preserve the remedies available under  1983.
               a.   Section   1914  creates  a  remedy  that   is
                    unavailable under  1983.
                    
          Section 1914 of the Indian Child Welfare  Act
          provides:
          Any  Indian child who is the subject  of  any
          action   for   foster   care   placement   or
          termination  of parental rights  under  State
          law,  any  parent  or Indian  custodian  from
          whose custody such child was removed, and the
          Indian childs tribe may 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.[114]
          
          Section  1914  allows an aggrieved  party  to  go  into
federal or state court and seek to have a foster placement  or  a
termination of parental rights invalidated.  We believe that most
federal and state courts would agree that this federal remedy  is
not available under  1983.  By its terms,  1983 confers authority
to grant equitable relief as well as damages, but its words allow
a  suit  in  equity only when that is the proper  proceeding  for
redress,  and they refer to existing standards to determine  what
is a proper proceeding. 115
          Section  1914  attempts  to  give  the  federal  courts
jurisdiction  to invalidate a state court judgment terminating  a
parents  rights.  The federal courts do not ordinarily have  this
jurisdiction because under the Rooker-Feldman doctrine, a  United
States  District Court has no authority to review final judgments
of  a  state court in judicial proceedings.116  The only  federal
court that may review a state court judgment is the United States
Supreme Court.117  The United States District Courts
          do   not   have  jurisdiction  .  .  .   over
          challenges   to  state  court  decisions   in
          particular  cases  arising  out  of  judicial
          proceedings  even if those challenges  allege
          that    the    state   courts   action    was
          unconstitutional.  Review of those  decisions
          may be had only in this Court.[118]
          
          The   federal   courts   have  indicated,   mostly   in
unpublished  decisions, that this doctrine applies  to  cases  in
which   a  parent  seeks  to  invalidate  a  state  courts  order
terminating  parental  rights.119  Without   1914,  then,  Indian
parents, tribes, custodians, and children would be unable to seek
invalidation  of  a  termination order  in  the  federal  courts,
regardless  of  whether  the state court had  complied  with  the
Indian  Child Welfare Act.  Such a remedy would not be  available
under  1983.
          We  recognize  that, despite  1914s  intent  to  confer
jurisdiction  on  the federal courts, litigants  have  often  had
difficulty  vindicating  their  rights  under  the  Indian  Child
Welfare  Act due to doctrines that preclude federal court  review
of  state  court  decisions,  such  as  collateral  estoppel  and
          abstention.120  But even so, because  1914 creates a federal remedy
that  would not be available at all, it broadens the relief  that
an  injured  party  could seek.  In Abrams, the  Court  seems  to
suggest  that whether a statute adds remedies to those  available
under   1983  is  a relevant factor to consider when  determining
whether the statutory framework was intended to displace  1983.121
Therefore,  the  relevant point here is that  in  passing   1914,
Congress  attempted to provide a remedy that  is  not  ordinarily
available  under   1983.   This  factor  weighs  in  favor  of  a
conclusion  that Congress intended  1914 not to  displace   1983,
but rather to supplement it.
               b.   Section 1914 does not limit  1983.
          The  next  factor to consider is whether the  statutory
remedy places procedural limits on relief more stringent than the
limits  imposed under   1983.  Section 1914 does  not  contain  a
statute of limitations.  When Congress does not establish  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.  122   The
United  States Supreme Court has mandated that courts borrow  the
most   closely   analogous  state  limitations  period.123    The
limitations period will necessarily vary from state to state.  We
have  determined,  for  instance,  that  challenges  to  adoptive
placements  brought under  1914 are subject to Alaskas  governing
one-year statute of limitations, AS 25.23.240(b).124
          Because the statute of limitations for a  1983 claim is
generally  the  applicable state-law period  for  personal-injury
torts,125 the limitations period for a  1983 action will also vary
from  state  to  state.   In Alaska, the limitations  period  for
personal injury actions is two years.126  Although Congress silent
endorsement  of   borrowing state limitations in actions  brought
under  1914 might lead to occasional differences between the time
limits  for  bringing  an  action  under   1983  and   1914,  the
resulting  restriction on enforcement under  1914 does  not  seem
sufficiently  uniform  or comprehensive to  imply  that  Congress
intended  to bar Indian Child Welfare Act provisions  from  being
enforced  under   1983.127   Moreover, the  risk  of  conflicting
limitations  periods  is further reduced by  the  type  of   1983
relief the villages seek here: the villages hope to use  1983  to
obtain  injunctive and declaratory relief, not  to  invalidate  a
particular  foster  care  placement or  termination  of  parental
rights.  In short,  1914s silence on the issue of time limits for
filing an action cannot reasonably be construed as an attempt  to
displace the broader range of relief offered under  1983.
               c.   Allowing  a   1983 action is not incompatible
                    with the Indian Child Welfare Act.
                    
          Finally,   and  most  significantly,    1983   is   not
inconsistent  with  and  would not  undermine  the  Indian  Child
Welfare  Act.  In Abrams, the Court observed that enforcement  of
the  rights created in the Telecommunications Act  through   1983
would distort the scheme of expedited judicial review and limited
remedies created by the statute.128  The concurring four Justices
noted  their  belief  that  to permit  1983  actions  here  would
          undermine the compromise . . . that the statute reflects.129
          In  contrast, allowing the villages to proceed with the
sort  of  action  they  press here would  neither  undermine  nor
distort the purposes of the Indian Child Welfare Act.  The Indian
Child  Welfare Act of 1978 was the product of rising  concern  in
the  mid-1970s  over the consequences to Indian children,  Indian
families,  and  Indian tribes of abusive child welfare  practices
that  resulted  in  the  separation of large  numbers  of  Indian
children  from  their  families and tribes  through  adoption  or
foster  care  placement,  usually in  non-Indian  homes.130   The
statutes  preliminary findings reiterate this concern.   Congress
found
          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;
          
          .  . . 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
          
          .  .  .   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.[131]
          
And  the  statutes  statement of purpose indicates  that  it  was
created to remedy these problems.
          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.[132]
          
The Act establishes a system for ensuring tribal participation in
state  procedures  for placing Native children and  provided  for
tribal  court  jurisdiction over many child welfare  proceedings.
In  addition,  the Act creates a series of procedural  safeguards
that  limit the circumstances under which Indian children may  be
removed from their family homes.
          The  villages  seek  in this action  to  use   1983  to
require  the state  to comply with the statutory requirements  of
the  Indian  Child Welfare Act.  The state, on  the  other  hand,
argues  that the Act cannot be enforced this way because Congress
did  not  so  intend; such enforcement could  upset  the  balance
Congress struck between a number of interests, such as the rights
of  tribes, Indian parents, and Indian children.  Although it  is
true  that  Congress balanced competing factors when passing  the
Act,  allowing this action to proceed would not undermine or even
affect any of these compromises.
          Moreover,  allowing  the villages to  go  forward  with
their  1983 action would in no way undermine the remedial effects
of   1914.   Regardless of whether the villages  are  allowed  to
proceed, individual parents, children, guardians, and tribes will
still  be  able  to invalidate improper placements  and  improper
terminations  of parental rights.  The villages action  will  not
undermine  this  remedy,  nor  will  it  allow  the  villages  to
circumvent  any  procedural limitations.  We  therefore  conclude
that  1914 was intended not to displace, but rather to supplement
the remedies available under  1983.133
     E.   Remedy
          In addition to the issue we have already discussed, the
state  objects  to  one of the remedies the  villages  seek.   To
supplement  the declaratory and injunctive relief  they  request,
the  villages asked the superior court to [a]ppoint  a  panel  of
experts, including Alaska Native members with experience in child
welfare issues, with full access to the defendants, their records
and their personnel, to develop and oversee the implementation of
a  plan  for  reform,  to  ensure  that  defendants  protect  the
constitutional and statutory rights of the plaintiff  tribes  and
their  members.  The state argues that this remedy would infringe
the  states special sovereignty interests and would therefore run
afoul  of  the  Supreme Courts recently created exception  to  Ex
parte  Young  suits.   In Idaho v. Coeur  dAlene  of  Idaho,  the
Supreme  Court held that a plaintiff may not bring  an  Ex  parte
Young suit in federal court claiming a right to the ownership  of
and  jurisdiction over submerged lands claimed by  the  state.134
Because  such an action implicates special sovereignty interests,
the suit is not merely a suit against a state officer, but is, in
effect, a suit against the state itself.135  The state argues that
appointing a panel of experts to oversee the child welfare system
would  similarly invade the states special sovereignty  interests
and that this portion of the suit should therefore be dismissed.
          We   need  not  consider  whether  Coeur  dAlene  would
prohibit  the  extraordinarily invasive remedy the  tribes  seek.
This  case  comes before us on a petition to review the  superior
courts refusal to dismiss some of the villages claims.  The  case
is  therefore  still  in its preliminary  stages.   It  would  be
premature for us to evaluate the propriety of a requested  remedy
where  there has been little discovery and no trial, much less  a
          verdict in the villages favor.  Unless or until the villages have
actually  prevailed on the merits of their claims and have  shown
their  entitlement to receive some remedy,  we think it premature
to  decide in the abstract whether the particular remedy they now
propose   would   infringe  upon  the  states  core   sovereignty
interests.
IV.  CONCLUSION
          For  the  foregoing  reasons, we  AFFIRM  the  superior
courts  ruling that the villages are proper plaintiffs  to  bring
parens  patriae  claims  under  1983.  We  REVERSE  the  superior
courts  ruling that the villages may bring claims  on  their  own
behalf  under  1983.  We REVERSE the superior courts ruling  that
the villages may bring claims against the state for violations of
the  Adoption Act, but we AFFIRM the courts conclusion  that  the
villages  may  bring claims against Tom Cherian in  his  official
capacity for violations of the Adoption Act and the Indian  Child
Welfare  Act,  and  we REMAND for further proceedings  consistent
with this opinion.
_______________________________
     1     The  facts  stated here come from  the  complaint  and
amended  complaint  and  we assume that they  are  true  for  the
purposes of this appeal.

     2    25 U.S.C.  1901-1963 (2005).

     3    42 U.S.C.  622(b)(9) (2005).

     4    42 U.S.C.  620-628, 670-679a (2005).

     5    See Maine v. Thiboutot, 448 U.S. 1 (1980).

     6    538 U.S. 701, 712 (2003).

     7    209 U.S. 123 (1908).

     8     See  AS  09.50.250 (A person or corporation  having  a
contract,  quasi-contract or tort claim  against  the  state  may
bring an action against the state . . . .).

     9    521 U.S. 261 (1997).

     10     Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250,  253
(Alaska 2000) (citing Kollodge v. State, 757 P.2d 1024, 1026  n.4
(Alaska 1988)).

     11    Reed v. Municipality of Anchorage, 741 P.2d 1181, 1184
(Alaska 1987) (citing Knight v. American Guard & Alert, Inc., 714
P.2d 788, 791 (Alaska 1986)).

     12     Martin  v.  Mears, 602 P.2d 421,  429  (Alaska  1979)
(citing  Schaible v. Fairbanks Med. & Surgical Clinic, Inc.,  531
P.2d 1252, 1257 (Alaska 1975)).

     13     Reed,  741  P.2d at 1184 (citing Linck v.  Barokas  &
Martin, 667 P.2d 171, 173 (Alaska 1983)).

     14    42 U.S.C.  1983 provides in its entirety:

          Every person who, under color of any statute,
          ordinance, regulation, custom, or  usage,  of
          any  State  or Territory or the  District  of
          Columbia,   subjects,   or   causes   to   be
          subjected,  any citizen of the United  States
          or   other  person  within  the  jurisdiction
          thereof  to  the deprivation of  any  rights,
          privileges,  or  immunities  secured  by  the
          Constitution and laws, shall be liable to the
          party  injured in an action at law,  suit  in
          equity,   or  other  proper  proceeding   for
          redress,  except that in any  action  brought
          against  a  judicial officer for  an  act  or
          omission  taken  in  such  officers  judicial
          capacity,  injunctive  relief  shall  not  be
          granted  unless  a  declaratory  decree   was
          violated    or   declaratory    relief    was
          unavailable.   For  the  purposes   of   this
          section,   any  Act  of  Congress  applicable
          exclusively to the District of Columbia shall
          be considered to be a statute of the District
          of Columbia.
          
     15    Inyo County, 538 U.S. at 704.

     16    Id.

     17    Id. at 704-05.

     18    Id. at 705.

     19    Id.

     20    Id. at 706.

     21    Id.

     22    Id.

     23    Id. at 709.

     24    Id. at 712.

     25    Id. at 709.

     26    Id. at 711.

     27    Id.

     28    Id. at 710 (citations omitted).

     29    Id.

     30    Id. at 712.

     31    Id.

     32    Id.

     33    Id.

     34    John v. Baker, 982 P.2d 738, 750 (Alaska 1999).

     35    Inyo County, 538 U.S. at 711.

     36    Id. at 704 (emphasis added).

     37    Id. at 712 (emphasis added).

     38    Id. at 713 (Stevens, J., concurring in judgment).

     39    We note that the scholars who have expressly considered
the  issue  appear  to  agree.  See  David  L.  Shapiro,  Justice
Ginsburgs First Decade: Some Thoughts About Her Contributions  in
the  Fields of Procedure and Jurisdiction, 104 Colum. L. Rev. 21,
29 (2004) (arguing that tribes should qualify as persons); Robert
Travis  Willingham,  Inyo County, California  v.  Paiute-Shoshone
Indians  of the Bishop Community of the Bishop Colony  and   1983
Actions by Indian Tribes, 72 UMKC L. Rev. 765, 784 (2004); Robert
H.  Freilich et al., The Freilich Report: A Review of the 2002-03
U.S.   Supreme  Court  Decisions  During  an  Era   of   Domestic
Insecurity, 35 Urb. Law. 565, 628 n.515 (2003).

     40    Georgia v. Pa. R. Co., 324 U.S. 439, 449-51 (1945).

     41     Alfred L. Snapp & Sons, Inc. v. Puerto Rico, 458 U.S.
592, 600-02 (1982).

     42    Id. at 601.

     43     Id.  at 601-02; see also Pa. R. Co., 324 U.S. at  447
(noting  that a state may sue[]as a proprietor to redress  wrongs
suffered  by it as the owner of a railroad and as the  owner  and
operator of various public institutions).

     44    Snapp, 458 U.S. at 602.

     45    Id. at 607.

     46    Id.

     47     See, e.g., People v. Peter & Johns Pump House,  Inc.,
914  F.  Supp. 809, 813 (N.D.N.Y. 1996) (noting that  the  relief
sought   in   discrimination  lawsuits  often   carries   greater
implications  and  a broader scope than the denial  of  benefits,
services, or accommodation to known individuals).  But see Prince
Georges  County  v.  Levi,  79  F.R.D.  1,  4  (D.C.  Md.   1977)
(concluding  that  a county lacked standing  to  bring  a  parens
patriae  claim to protect the rights of African American citizens
since there was no indication why those blacks [were] helpless to
challenge denial of their rights or how the [county] is  affected
by that denial in a way that is separate and distinct).

     48    See Peter & Johns Pump House, 914 F. Supp. at 813.

     49     In  Georgia v. Pennsylvania R. Co., the Court allowed
Georgia  to  bring suit as parens patriae under the  Clayton  Act
which,  the  Court  noted, also allowed for individual  suits  by
private  parties.   324  U.S. at 447.  In  Georgia  v.  Tennessee
Copper  Co.,  the Court allowed Georgia to sue a private  company
seeking to enjoin the defendant copper companies from discharging
noxious  gas  from their works in Tennessee.  206 U.S.  230,  236
(1907).   Although the Court indicated that it might hesitate  to
allow  private parties to seek an injunction (due to the  extreme
economic  consequences of such an injunction),  it  did  indicate
that the private injured parties likely had a remedy at law.  Id.
at 238.  In Snapp v. Puerto Rico, the commonwealth of Puerto Rico
brought  suit against private employers to enforce the provisions
of the Wagner-Peyser Act and the Immigration and Nationality Act.
458  U.S. 592, 608 (1982).  The circuits are split about  whether
these  acts  allow  private rights of action.  Compare  Gomez  v.
Florida  State Employment Serv., 417 F.2d 569, 575-76  (5th  Cir.
1969) (finding that the Wagner-Peyser Act created a private right
of  action)  with Donaldson v. United States Dept of  Labor,  930
F.2d  339,  342 (4th Cir. 1991) (noting that whether the  Wagner-
Peyser Act allows a private right of action is questionable), and
Garrison  v.  OCK Const., Ltd., 864 F. Supp. 134, 135  (D.  Guam)
(noting  split of authority regarding whether INA creates private
cause of action).

     50    Pennsylvania v. Porter, 659 F.2d 306 (3d Cir. 1981).

     51    Id. at 315-16.

     52    Inyo County, 538 U.S. at 712.

     53    Id.

     54     Foreign  sovereigns may not bring suit  under   1983.
Breard  v.  Greene,  523  U.S. 371, 378 (1998).   And  the  Third
Circuit  has  held that the United States is not a  proper  civil
plaintiff  under  18 U.S.C.  241 and 242 which are  the  criminal
counterparts  to   1983  and  1985.  United  States  v.  City  of
Philadelphia,  644  F.2d 187, 192-203 (3d Cir.  1981).   But  the
Eleventh  Circuit  has allowed the United States  to  bring  suit
under  1983.  United States v. Alabama, 791 F.2d 1450, 1455 (11th
Cir. 1986) (declining to allow a state university to intervene in
a   1983  action brought by the United States against Alabama  on
the  grounds  that  states  could not  sue  themselves,  but  not
objecting  to the status of the United States as plaintiff  under
 1983).  Some courts have held that states and municipalities are
not proper plaintiffs under  1983.  Rockford Bd. of Educ. v. Ill.
State   Bd.  of  Educ.,  150  F.3d  686,  688  (7th  Cir.   1998)
(municipalities are not proper plaintiffs under  1983);  Illinois
v.  City of Chicago, 137 F.3d 474, 477 (7th Cir. 1998) ([A] state
is  not  a  person  under [ 1983] and therefore  can  be  neither
plaintiff  nor  defendant in a  1983 case.) (citations  omitted);
City  of  Safety Harbor v. Birchfield, 529 F.2d 1251,  1255  (5th
Cir.  1976)  (holding,  based  on a now-overruled  Supreme  Court
holding  that municipalities could not be sued under  1983,  that
municipalities  could similarly not be plaintiffs  under   1983).
But others have concluded  that states and their subdivisions may
bring  claims  under   1983.   South  Macomb  Disposal  Auth.  v.
Township  of  Washington,  790 F.2d  500,  503  (6th  Cir.  1986)
(holding  that  because municipalities could be defendants  under
 1983 it would be anomalous to find that they were precluded from
being plaintiffs).

     55    799 F. Supp. 272 (N.D.N.Y. 1992).

     56    370 F. Supp. 724 (W.D. Pa. 1974).

     57     404  F. Supp. 1022 (W.D. Pa. 1975), vacated,  760  F.
Supp.  472  (W.D.  Pa. 1991) (vacating the earlier  decision  not
because  the  state  was an improper plaintiff  but  because  the
standards for showing unconstitutional discrimination had changed
in  the  intervening  years  and the  injunction  issued  by  the
original court was therefore no longer valid).

     58    659 F.2d 306 (3d Cir. 1981).

     59    Id. at 309.

     60    Id. at 314.

     61    Id.

     62    Id. at 314.

     63    Id. at 315.

     64    Id. at 316.

     65    Cf. 25 U.S.C.  1902 (2005):

          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.
          
     66    See Inyo County, 538 U.S. at 712.

     67    Arizonans for Official English v. Arizona, 520 U.S. 43,
69  (1997).   Recently  in  ASW  v.  Oregon,  the  Ninth  Circuit
permitted a  1983 claim to enforce rights under the Adoption  Act
to  proceed  against  the state and the director  of  the  Oregon
Department of Human Services.  424 F.3d 970 (9th Cir. 2005).  For
the purposes of the appeal, the court appeared to assume arguendo
that  the  state was vulnerable to a  1983 action.  However,  the
court  did  not decide the issue and the state did not raise  it,
focusing  its argument instead on the contention that the  appeal
was moot.  Id. at 973.

     68    Arizonans for Official English, 520 U.S. at 69.

     69     Id.; see also Will v. Mich. Dept of State Police, 491
U.S. 58, 65-66 (1989).

     70    Will, 491 U.S. at 65-66.

     71     See,  e.g., State v. Zia, Inc., 556 P.2d  1257,  1260
(Alaska 1976).

     72     Arizonans for Official English, 520 U.S. at 69  n.24;
see also Edeleman v. Jordan, 415 U.S. 651, 663, 678 (1974).

     73    Ex parte Young, 209 U.S. 123 (1908) (holding that state
officials  may be sued for injunctive relief notwithstanding  the
Eleventh  Amendments  prohibition  of  suits  against  states  by
citizens  in federal court); Edeleman, 415 U.S. at 677 (affirming
that   in  Ex  parte  Young  suits,  plaintiffs  may  seek   only
prospective injunctive relief); Alden v. Maine, 527 U.S. 709, 747-
48  (1999)  (noting that Ex parte Young suits may be  brought  in
state as well as federal court).

     74    See Ex parte Young, 209 U.S. at 159 (indicating that a
state  officials  use  of the name of the  state  to  enforce  an
unconstitutional  act  to  the  injury  of  complainants   is   a
proceeding  without  the authority of, and  one  which  does  not
affect, the state in its sovereign or governmental capacity).

     75    The full text of 42 U.S.C.  1983 is set out in note 14,
above.

     76    Blessing v. Freestone, 520 U.S. 329, 341 (1997).

     77     City of Rancho Palos Verdes v. Abrams, 544 U.S.  113,
122 (2005).

     78    Gonzaga Univ. v. Roe, 536 U.S. 273, 283 (2002).

     79    Blessing, 520 U.S. at 340 (emphasis in original).

     80    Id. at 340-41 (citations omitted).

     81    Gonzaga Univ., 536 U.S. at 283.

     82    Id.

     83     The  state  does not dispute that  the  Indian  Child
Welfare  Act creates specific enforceable rights meant to benefit
Indian  families and tribes.  Nor does the state argue  that  the
Adoption  Act specifically forecloses a remedy under   1983.   We
therefore find no need to discuss these points.

     84     See  42  U.S.C.  671 (2005).Suter, 503 U.S.  at  350.
See id. at 358.Charlie H. v. Whitman, 83

     85      Supp. 2d 476, 484 (D.N.J. 2000).ns Under 42 U.S.C.A.
 1983 for Violations of Adoption Assistance and Child Welfare Act
(42  U.S.C.A.  620 et seq. and 670 et seq.), 93 A.L.R. Fed.  314,
2 (1989).

     86    Id.

     87    Suter v. Artist M., 503 U.S. 347, 351 (1992).

     88    See 42 U.S.C.  671 (2005).

     89    Suter, 503 U.S. at 350.

     90    See id. at 358.

     91    Charlie H. v. Whitman, 83 F. Supp. 2d 476, 484 (D.N.J.
2000).

     92    Id.

     93    42 U.S.C.  671(a)(16) (2005).

     94    In full,  675(1)(B) provides:

          As  used  in  this part or  part  B  of  this
          subchapter:
          
            (1)  The  term  case plan means  a  written
          document   which  includes   at   least   the
          following:
          
          . . . .
          
          (B)   A  plan  for  assuring that  the  child
          receives  safe  and  proper  care  and   that
          services are provided to the parents,  child,
          and  foster  parents in order to improve  the
          conditions  in  the parents home,  facilitate
          return  of the child to his own safe home  or
          the  permanent  placement of the  child,  and
          address  the  needs  of the  child  while  in
          foster  care, including a discussion  of  the
          appropriateness  of  the services  that  have
          been provided to the child under the plan.
          
     95    The state argues that because  675 is definitional, it
cannot  create  rights. Because we read  675 in conjunction  with
other  sections of the Adoption Act, we need not consider whether
or under what circumstances definitional provisions, taken alone,
could create enforceable rights.

     96     Websters Third New International Dictionary 1929  (3d
ed. 1969).

     97    42 U.S.C.  671(a) (2005) (emphasis added).

     98    42 U.S.C.  675(1)(B) (2005).

     99    42 U.S.C.  675(5)(A) (2005).

     100    42 U.S.C.  675(5)(C) (2005).  We note that AS 47.10.080
and CINA Rule 17.2 incorporate many of these requirements.

     101    Wright v. City of Roanoke Redevelopment & Hous. Auth.,
479 U.S. 418, 423 (1987).

     102    453 U.S. 1 (1981).

     103    468 U.S. 992 (1984).

     104    544 U.S. 113 (2005).

     105    Id. at 122.

     106    Id.

     107    Id. at 121.

     108    Id. at 122.

     109    Id. at 121-22.

     110    Id. at 122.

     111     Id. at 121; Sea Clammers, 453 U.S. at 8, nn.9 &  11;
Smith, 468 U.S. at 1010-12.

     112    Abrams, 544 U.S. at 124.

     113    See id. at 128-29 (Breyer, J., concurring); Smith, 468
U.S. at 1009-12.

     114    25 U.S.C.  1914 (2005).

     115    Rizzo v. Goode, 423 U.S. 362, 378 (1976) (quoting Giles
v. Harris, 189 U.S. 475, 486 (1903)).

     116    Dist. of Columbia Court of Appeals v. Feldman, 460 U.S.
462, 482 (1983).

     117    Id.

     118    Id. at 486.

     119     See, e.g., Rainey v. Samuels, 130 Fed Appx 808,  810
(7th  Cir. 2005) (unpublished) (ruling that section 1983 may  not
be  used to obtain relief that implied the invalidity of a  state
courts  judgment that binds the federal plaintiff  in  personam);
Baker v. Wayne County Family Independence Agency, 75 Fed Appx 501
(6th  Cir. 2003) (unpublished); Umtuch v. Hoyt, 163 F.3d 609,  *1
(9th  Cir.  1998)  (unpublished) (ruling that  parent  could  not
challenge  collaterally the state court proceeding that  resulted
in  the  termination of her parental rights because [t]he federal
courts  .  .  .  are  not  a  forum  for  appealing  state  court
decisions).  But see Bartell v. Lohiser, 215 F.3d 550  (6th  Cir.
2000)  (reviewing  and,  in  effect,  affirming  a  state  courts
termination of parental rights).

     120     See Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 590
(10th  Cir.  1985)  (holding that res judicata  prohibited   1914
claim  in  federal court after the same issue had been raised  in
state court).  Cf. Native Vill. of Venetie IRA Council v. Alaska,
944  F.2d  548,  554  n.4 (9th Cir. 1991) (holding  that  federal
courts  have  jurisdiction to intervene when a state  refuses  to
comply  with  the requirements of the Indian Child Welfare  Act);
Doe  v.  Mann, 285 F. Supp. 2d 1229, 1234 (N.D. Cal. 2003)  (This
court finds that section 1914 grants federal courts the power  to
review  state custody proceedings such as those here;  therefore,
the  Rooker-Feldman  doctrine does not apply  to  the  action  at
bar.).

     121     Abrams, 544 U.S. at 121 ([T]he existence of  a  more
restrictive  private  remedy . . . has  been  the  dividing  line
between  those cases in which we have held that an  action  would
lie  under   1983 and those in which we have held that  it  would
not.) (emphasis added).

     122     In re Adoption of Erin G., 140 P.3d 886, 891 (Alaska
2006) (quoting Wilson v. Garcia, 471 U.S. 261, 266-67 (1985)).

     123    Graham County Soil & Water Conservation Dist. v. U.S.
ex rel. Wilson, 545 U.S. 409, 414 (2005).

     124     In  re  Adoption of Erin G., 140  P.3d  at  893  (AS
25.23.140(b)  requires that challenges to an adoption  decree  be
brought  within  one year).  Cf. Del. Code  Ann.  tit.  13,   917
(2006) (attack of adoption decree permitted within thirty days).

     125    Abrams, 544 U.S. at 124 n.5.

     126     AS  09.10.070; Sengupta v. Univ. of Alaska, 21  P.3d
1240, 1249 (Alaska 2001).

     127     Cf. Blessing, 520 U.S. at 341 (Congress may  .  .  .
forbid[]  recourse  to   1983  . . .  impliedly,  by  creating  a
comprehensive  enforcement  scheme  that  is  incompatible   with
individual enforcement under  1983.).

     128    Abrams, 544 U.S. at 127.

     129    Id. at 128-29 (Breyer, J., concurring).

     130     Miss. Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 33 (1989).

     131    25 U.S.C.  1901(3)(5) (2005).

     132    25 U.S.C.  1902 (2005).

     133     Nothing in this opinion should be taken to imply any
view as to whether a damage remedy might be available under  1983
for  violations  of rights created by the Adoption  Act  and  the
Indian Child Welfare Act.

     134    521 U.S. at 265, 287-88.

     135    Id. at 281-88.

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC