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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
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.
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