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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Starr v. George (01/18/2008) sp-6224
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
| DENNIS STARR and DELORES | ) |
| STARR, | ) Supreme Court No. S- 12456 |
| ) | |
| Appellants, | ) Superior Court No. 1JU-04-869 CI |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| RICHARD GEORGE; BARBARA | ) No. 6224 January 18, 2008 |
| GEORGE; and DENNI STARR | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Larry R. Weeks, Judge.
Appearances: Kenneth C. Kirk, Kenneth Kirk &
Associates, Anchorage, for Appellants. Holly
Handler, Alaska Legal Services Corporation,
Juneau, for Appellees Richard George and
Barbara George. Lisa B. Nelson, Anchorage,
for Appellee Denni Starr.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Carpeneti, Justices. [Bryner,
Justice, not participating.]
EASTAUGH, Justice.
I. INTRODUCTION
Richard and Barbara George are the paternal
grandparents of two young Tlingit children. They filed a superior
court custody petition and served Dennis and Delores Starr, the
maternal grandparents. The Georges had previously been granted
visitation with the children in state court guardianship
proceedings brought by the Starrs after the childrens mother
killed their father. While these three superior court cases were
still pending, the Starrs obtained tribal council resolutions
approving their adoption of the children. The Starrs then moved
to dismiss the Georges state court custody action. The Georges
did not have prior notice of the tribal council adoption
proceedings. The superior court denied the Starrs motion to
dismiss. After a trial the superior court granted physical and
legal custody of the children to the Georges and visitation
rights to the Starrs. Because the Georges involvement in the
pending superior court proceedings entitled them to notice and an
opportunity to be heard in the adoption proceedings, the tribal
council resolutions are not entitled to enforcement in Alaska
state courts. We therefore affirm the superior courts order
denying the motion to dismiss and its award of custody and
visitation.
II. FACTS AND PROCEEDINGS
Denni Starr and Richard Buddy George, Jr. had two
daughters together, K.S., born in 1997, and S.G., born in 2002.
On July 26, 2003, Denni Starr fatally stabbed Buddy George in the
presence of their children.1 A jury ultimately found Denni
guilty of second-degree murder and reckless endangerment for
recklessly creating a substantial risk of serious harm to her
infant daughter, S.G., who was in her fathers arms at the time of
the attack.2 The court sentenced her to thirty years for murder
and one year for reckless endangerment.3
In the meantime, the maternal grandparents, Dennis and
Delores Starr, filed for guardianship of the children in superior
court in Case No. 1JU-03-155 PR/G and Case No. 1JU-03-156 PR/G
(collectively referred to as 2003 guardianship cases); on August
5, 2003, the superior court appointed the Starrs as guardians.
The paternal grandparents, Richard and Barbara George, initially
consented to the Starrs guardianships. By order of August 18,
2004, the superior court granted the Georges visitation rights in
the guardianship cases. In September 2004 the Georges filed a
motion in those cases to enforce their visitation rights,
claiming the Starrs had denied the Georges visitation with the
children. On September 27, 2004, the superior court ordered the
Starrs to comply with the visitation order and set a hearing for
November 1 to hear visitation issues.
Denni Starr, the childrens mother, signed an Alaska
Bureau of Vital Statistics Parental Statement form on October 8,
2004 listing both K.S. and S.G. and stating that, [these]
child[ren] ha[ve] been adopted, under the custom of the
child[ren]s tribe. The form listed Dennis and Delores Starr as
the adoptive parents. The Georges appear to have been unaware
that Denni Starr had signed the Parental Statement form.
Both the Starrs and the Georges participated in the
November 1, 2004 hearing regarding visitation in the 2003
guardianship cases. The Starrs testified at the hearing, but
never mentioned the possibility of any other proceedings
involving the children apart from the superior court
guardianships.
Also on November 1, 2004, the Georges commenced a new
superior court action, Case No. 1JU-04-869 CI (2004 custody
case), seeking custody of both children; they personally served
the Starrs with the petition. The Georges sought custody on the
grounds the Starrs had removed K.S. and S.G. from Angoon and had
allegedly prevented the children from having any contact with
relatives on the paternal side of the family. On November 19,
2004, the Starrs answered and denied that they had prevented the
Georges from exercising their visitation rights.
On February 26, 2005, the Starrs signed for each child
a Request for Substitute Birth Certificate Following a Cultural
Adoption verifying that they were the adoptive parents of K.S.
and S.G. There is no indication, and the Starrs do not contend,
that these forms were served on or received by the Georges or
that the Georges were aware of them before September 2005, when
the Starrs filed a motion to dismiss in the 2004 custody case.
On May 17, 2005, the Georges filed a motion for summer
visitation in the 2004 custody case. The superior courts June
17, 2005 order awarded summer visitation to the Georges in the
custody case.
On June 30, 2005, the parties local tribal council, the
Angoon Community Association (ACA), approved resolutions stating
that it has recognized the Starrs adoptions of the two children.
The ACA also issued Tribal Statements affirming each childs
adoption and stating that the tribe has not been informed of any
person or agency other than the adoptive parents who is asserting
claim to custody under state or tribal law. These statements are
dated June 30, 2005. It is unclear whether the resolutions
which were prepared on Alaska Bureau of Vital Statistics forms4
were recognitions of tribal adoptions that had taken place
previously or were themselves the council enactments that sought
to approve the Starrs tribal adoption petitions.
There is no evidence the Starrs or the ACA provided the
Georges formal notice or an opportunity to be heard in the tribal
council proceedings.
On July 5, 2005, the Alaska Bureau of Vital Statistics
issued new birth certificates for K.S. and S.G. naming the Starrs
as parents.
On September 1, 2005, the Starrs moved to dismiss the
Georges 2004 custody case, arguing that the adoptions terminated
the legal relationship between the Georges and the children and
that the Georges no longer possessed standing in the custody
action. The Georges opposed the motion, arguing that because
they did not receive notice prior to the adoption resolutions,
the adoption resolutions were not entitled to comity.5
The superior court denied the Starrs motion to
dismiss. The court concluded that the Indian Child Welfare Act
(ICWA)6 which requires courts to extend full faith and credit to
tribal court decisions involving child custody proceedings7 did
not apply. The court reasoned that the custody dispute did not
raise either of the concerns ICWA seeks to address8 and that the
rationale for ICWAs divorce exception9 justified applying that
exception to a custody dispute between grandparents when the
parents are no longer available.
The superior court therefore concluded that the tribal
adoptions were not subject to full faith and credit, but rather
were subject to the principle of comity a principle under which
it is easier to attack the parallel judgments of foreign (in this
case, tribal) courts.10 The superior court further concluded that
the tribal adoptions were not entitled to comity because the
Georges had not been given notice and an opportunity to be heard
in violation of their due process rights. The superior court
therefore denied the Starrs motion to dismiss the Georges custody
proceeding.
The superior court then conducted a two-day trial in
the custody case, and issued findings of facts and conclusions of
law. The court found that it was in the childrens best interest
for the Georges to be awarded physical and legal custody because
they were most willing and able to facilitate and encourage the
children to have a close and continuing relationship with their
mothers parents and family. The court granted the Georges
physical and legal custody of the girls and granted the Starrs
visitation rights.
The Starrs appeal the denial of their motion to dismiss
on the ground the tribal adoptions were entitled to full faith
and credit.11 Denni Starr joins her parents arguments as an
appellee.
III. DISCUSSION
A. Standard of Review
The parties agree that all of the issues on appeal
present questions of law. We review rulings on questions of law
de novo, adopting the rule of law most persuasive in light of
precedent, reason, and policy.12 We apply our independent
judgment to decide legal questions such as the scope of the
tribal courts subject matter jurisdiction and the meaning of
federal statutes.13 When construing statutes that affect the
rights of Native Americans, we liberally construe these statutes
and resolve ambiguities in favor of Native Americans.14
B. Whether ICWAs Divorce Exception Applies Here
ICWA applies in a child custody proceeding15 involving
an Indian child.16 ICWAs provisions, including the requirement to
grant full faith and credit to judicial proceedings of Indian
tribes, apply only to child custody proceedings involving Indian
children.17 Custody awards to one parent in a divorce proceeding
are specifically excepted by ICWAs so-called divorce exception.18
In John v. Baker (John I) we extended the divorce
exception to exclude from ICWAs coverage custody disputes between
unmarried parents.19 We noted that the dual goals of ICWA to
protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families are not
implicated in custody disputes between unmarried parents.20
Regardless of the outcome, in a dispute between unmarried
parents, the child would continue to be raised in the home of a
Native parent and in a Native village; thus, ICWAs exclusive
jurisdiction and procedural guidelines are unnecessary to protect
the familys or the tribes interests in those situations.21
The superior court used this reasoning to conclude that
the divorce exception applies to custody disputes between
grandparents when the parents are unavailable.
We conclude, however, that the divorce exception does
not extend to custody disputes between grandparents. In A.B.M.
v. M.H. we held that ICWA does not have an exception for custody
disputes within the extended family.22 We further noted that a
grandparent is an extended family member.23 Although we
recognized that, upon adoption by members of the childs extended
family, application of ICWA was not required to preserve the
childs ties to Indian cultural or social values, we could not
justify creating a judicial exception on this basis alone.24 It
was error to create such an exception here.
The divorce exception guarantees that parents can
always litigate in state court their paramount parental rights.
In comparison, persons who do not have rights as paramount as
those of parents are necessarily subject to ICWA (assuming ICWA
applies). We next address whether, as the Starrs argue, the
tribal resolutions are entitled to full faith and credit.
C. Whether the Tribal Resolutions Are Entitled to Full
Faith and Credit
For purposes of discussion, we assume without deciding
that the tribal council adoption proceedings were child custody
proceedings within the meaning of ICWA.25 Despite that
assumption, we determine that the tribal resolutions in this case
are not entitled to comity or full faith and credit; therefore it
is irrelevant whether the comity or full faith and credit
standard applies because the tribal resolutions do not meet the
threshold for either standard.
ICWA requires the state to give the same credit to
tribal court judgments it gives to the judgments of the courts of
sister states.26 When determining whether to accord full faith
and credit to a judgment of the court of a sister state, we first
decide whether the issuing court had personal and subject matter
jurisdiction when it entered its judgment.27 Full faith and
credit also requires that the issuing court afford the parties
due process and render its judgment in accordance with federal
and state constitutional standards.28 We turn first to the due
process issue because it turns out to be controlling in this
case.
The Starrs argue that due process was not violated
because the Georges were not entitled to due process rights and
notice to them was therefore not required. The Starrs contend
that Judge Weeks decision assumes, without actually addressing
it, that the paternal grandparents took the position of their son
when he died, and that they are therefore entitled to such
notice. The Starrs assert that this assumption was error because
[n]othing in the laws supports such a conclusion. The Starrs
additionally argue that an extant guardianship case does not
prohibit adoption because custody and adoption are two different
types of proceedings.
In response, the Georges argue that [l]egally and
logically, they were interested parties in the adoption
proceedings. In support, the Georges point to the 2004 superior
court order granting them visitation rights in the 2003
guardianship cases and the June 2005 order issued in the 2004
custody case formally recognizing the standing of both sets of
grandparents to assert custody claims under AS 25.20.070.
We agree with the Georges. It is unclear when the
tribal court proceedings began. At some point the Starrs sought
permission from the ACA to adopt the children, but we do not know
when this occurred. The Starrs motion to dismiss states only
that [s]hortly after Den[ni] Starrs conviction in September,
2004, defendants Dennis and Delores Starr petitioned the Angoon
tribal authority to adopt the minor children. The Starrs brief
on appeal states, without citing to a dated document confirming
the assertion, that they filed the petition [s]ometime in
approximately September or October 2004.
But around that time, on November 1, 2004, the Starrs
testified in a visitation hearing in the 2003 guardianship cases.
As previously mentioned, at no point during the hearing did the
Starrs tell the superior court that there were any other
proceedings involving the children apart from the superior court
proceedings.
Similarly, AS 25.30.380(a)(2) requires that each party,
in its first pleading . . . must state whether the party . . .
knows of a proceeding that could affect the current proceeding,
including a proceeding for enforcement and a proceeding relating
to . . . termination of parental rights, and adoptions. The
Georges November 1, 2004 custody petition, filed in the superior
court in the 2004 custody case and served on the Starrs, alleged
that there was no pending action regarding the children in any
court, including tribal court, other than the 2003 guardianship
cases still pending before the superior court. The Starrs
November 19, 2004 answer did not mention any tribal council
proceedings and did not deny the truth of the Georges assertion.
The Starrs answer in the custody case is therefore deemed to have
admitted that there was no other proceeding dealing with the
children, apart from the 2003 superior court guardianship cases
that were still pending.29
Furthermore, the Starrs September 2005 motion to
dismiss the 2004 custody case states that [t]he matter was taken
up by the Angoon Community Association . . . on June 30, 2005.
We therefore conclude that the tribal council first adopted the
resolutions on June 30, 2005.
This means that there were three open superior court
proceedings (the two 2003 guardianship cases and the 2004 custody
case) in existence before the tribal court adopted the
resolutions. The Georges were interested parties in the adoption
proceedings both because of their status as petitioners in the
2004 custody case and because they were holders of court-ordered
visitation rights in the 2003 guardianship cases. The parties
appeared in state court litigating custody and visitation issues
before the tribe considered the Starrs adoption petition. As a
result of the 2003 guardianship cases and particularly the entry
of the August 2004 order granting visitation rights to the
Georges and the November 1, 2004 commencement of the petition
for custody in which the Starrs were personally served, the
Starrs knew that the Georges had been granted visitation rights
by court order, and were seeking custody. Their involvement in
the state court proceedings entitled the Georges to due process
in the tribal court proceedings.
We next consider whether the tribal court proceedings
satisfied due process. As an initial matter, we note that the
Georges had the burden of proving a due process violation.30 We
have previously noted that it is presumed the decisions of tribal
courts are sound31 unless the challenging party can show that the
foreign judgment was constitutionally infirm.32
In John I, we stated in dictum that comity should not
be granted to tribal judgments if due process was denied.33 We
also noted there that, [i]n deciding whether tribal court
proceedings complied with due process, courts should consider
whether the parties received notice of the proceedings and
whether they were granted a full and fair opportunity to be heard
before an impartial tribunal that conducted the proceedings in a
regular fashion.34 In Evans v. Native Village of Selawik IRA
Council we refused to afford comity to a tribal adoption
resolution after concluding that a lack of notice violated an
unwed fathers due process rights.35
We conclude that failure to give notice and an
opportunity to be heard violates due process requirements under a
full faith and credit standard as well. Even if the tribal
councils adoption orders warrant a full faith and credit analysis
under 1911(d), [t]he statute does not require the state court to
give absolute deference to a tribal court order regardless of the
circumstances.36 As we previously stated:
The requirement of full faith and credit is
to be read and interpreted in the light of
well-established principles of justice,
protected by other constitutional provisions
which it was never intended to modify or
override. . . . [N]o state may obtain, in the
tribunals of another jurisdiction, full faith
and credit for a judgment which is based upon
an unconstitutional law, or is rendered in a
proceeding wanting in due process of law
enjoined by the fundamental law. Indeed, due
process requires that no other jurisdiction
shall give effect, even as a matter of
comity, to a judgment elsewhere acquired
without due process.[37]
ICWA requires the state to give the same credit to
tribal court judgments it gives to the judgments of the courts of
sister states.38 We therefore look to the federal Full Faith and
Credit Clause39 and the implementing federal statute,40 which
require the state to give full faith and credit to the judgments
of the courts of sister states, for guidance in determining
whether the tribal court resolutions meet the requirements
entitling them to full faith and credit under ICWA.
In analyzing the federal Full Faith and Credit Clause
and 1738, the United States Supreme Court said that [a] State
may not grant preclusive effect in its own courts to a
constitutionally infirm judgment, and other state and federal
courts are not required to accord full faith and credit to such a
judgment.41 The Court also stated that a court proceeding need do
no more than satisfy the minimum procedural requirements of the
Fourteenth Amendments Due Process Clause in order to qualify for
. . . full faith and credit under 1738.42
Here the tribal adoption proceedings did not meet the
minimum procedural requirements of due process. An elementary
and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated,
under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present
their objections.43 We have also noted that notice and an
opportunity to be heard are essential elements of due process
under the Alaska Constitution.44 Compliance with due process
requirements is particularly important in cases involving child
custody and the termination of parental rights.45
As the Starrs correctly point out, [t]ribal courts,
quite obviously, do things differently than state courts.
Indeed, tribal courts need not provide due process in the exact
manner as state courts.46 The proceedings must, however, be
addressed to the issues involved in a meaningful fashion and
pursuant to adequate notice.47
Lack of notice is a recognized exception[] to full
faith and credit.48 A judgment rendered without judicial
jurisdiction or without adequate notice or adequate opportunity
to be heard will not be recognized or enforced in other states.49
Other states have declined to extend full faith and credit to
sister state judgments under 28 U.S.C. 1738 for procedural due
process violations based on lack of notice.50 We likewise decline
to extend full faith and credit to the Starrs tribal adoption
order under 25 U.S.C. 1911(d) for the procedural due process
violation here.
It is unclear when the Starrs began the tribal adoption
proceedings but it is undisputed that the Georges were not given
formal notice or an opportunity to be heard at any time before
the ACA issued the resolutions.51 The Starrs do not contest the
superior court finding that the Starrs did not give the Georges
formal notice of the adoptions until the Starrs filed their
motion to dismiss on September 1, 2005. The tribal court
adoption proceedings therefore failed to comply with the minimal
requirements of due process. Because the Georges due process
rights were violated, the tribal adoptions are not entitled to
full faith and credit.
The Starrs also contend that if we decide that the
Georges should have been given notice, we must remand for a
factual determination whether the Georges had actual notice in
advance of the tribal adoptions. The Georges affidavits state
that [a]t no time before June, 2005 did [they] receive notice
from anyone that Angoon Community Association was reviewing a
petition for tribal adoption of [their] granddaughters. As far
as we can tell, the tribal adoption resolutions were not approved
until June 30, 2005. The record does not establish or imply that
the Georges learned about the proceedings before the adoption
resolutions were approved. Regardless, the Starrs do not
challenge the Georges assertion that they learned about the
adoptions by word of mouth. Because, as other courts have noted,52
such an informal method does not satisfy the constitutional
notice requirements of due process, it is irrelevant whether the
Georges had actual advance notice.
The Starrs additionally argue that the superior court
did not adequately consider the availability of [c]orrective
[m]easures by the tribal court. The Starrs are apparently
suggesting that the superior court should have delayed the
custody trial to allow the tribal council to provide appellate
review of the tribal adoption proceeding. Although the Starrs
motion to dismiss did not ask the superior court for this relief,
the Starrs contend that they cannot have waived certain rights by
not bringing them up at the trial level because parties under
ICWA cannot simply waive rights, because ICWA is mandatory. But
appellate review in the tribal court system is not a right
mandated by ICWA, and it is hard to imagine what right the Starrs
might have had to tribal court appellate review considering that
they prevailed in the adoption proceedings. Indeed, the Georges
were not even parties. The Starrs have not waived a right, they
have merely waived an argument. Because the Starrs failed to
adequately raise the argument below, the Starrs have not
preserved their corrective measures argument. We therefore do
not need to address it.53
D. Whether the Wishes of the Tribal Court Can Be
Heard
Our decision today does not, as the Starrs imply,
dictate that the wishes of the tribal court cannot be heard. The
award of custody to the Georges and visitation to the Starrs made
by the superior court on June 22, 2006, does not accomplish an
adoption and is not necessarily a permanent grant of custody to
the Georges. The Angoon Community Association may move for leave
to intervene per ICWA if there are future disputes concerning
custody, or if it shows other sufficient circumstances.54
Likewise, the Starrs may seek a change of custody, or visitation,
should there be a change of circumstances.
IV. CONCLUSION
Because their involvement as litigants and recipients
of visitation orders in prior proceedings entitled the Georges to
notice and an opportunity to be heard in the tribal adoption
proceedings, the tribal resolutions are not entitled to full
faith and credit in Alaska state courts. We therefore AFFIRM the
judgment below.
_______________________________
1 Starr v. State, Mem. Op. & J. No. 5166 at 1 (Alaska
App., Jan. 31, 2007), 2007 WL 293072.
2 Id.
3 Id.
4 The Tribal Resolution forms issued by the Bureau of
Vital Statistics were revised in March 2006 and now state that
they are not for use with tribal court adoption.
5 Each of the Georges filed an affidavit that identically
stated:
At no time before June, 2005 did I receive
notice from anyone that Angoon Community
Association was reviewing a petition for
tribal adoption of my granddaughters; The
first I heard about the ACA tribal adoption
was by word of mouth here in Angoon in June;
I never received any written or oral notice
that a petition for adoption was filed or
being considered.
In their accompanying memorandum, the Georges argued
that:
In June, [they] learned that the Angoon
Community Association . . . tribal court had
issued a resolution granting Mr. and Mrs.
Starrs request for cultural adoption. This
was the first notice either had received of
the tribal adoption proceeding.
Documentation of such tribal adoption was not
provided until the Motion to Dismiss was
filed September 1, 2005.
6 Indian Child Welfare Act (ICWA) of 1978, 25 U.S.C.
1901 et seq. (2006).
7 25 U.S.C. 1911(d).
8 See John v. Baker (John I), 982 P.2d 738, 746-47
(Alaska 1999) (noting that Congress stated that the statutes dual
purpose was to protect the best interests of Indian children and
to promote the stability and security of Indian tribes and
families. (quoting 25 U.S.C. 1902)).
9 Id. at 747. Congress excepted divorce proceedings from
ICWAs coverage because, regardless of the outcome of a custody
dispute between two Native parents, the child would remain with a
Native parent and in the Native village. Therefore, ICWAs
procedural safeguards are unnecessary to protect the interests of
the family or the tribe. Id.; see also H.R. Rep. No. 95-1386, at
31 (1978), reprinted in U.S.C.C.A.N. 7530, 7554 (We believe that
the protections provided by this act are not needed in
proceedings between parents.).
10 See, e.g., Robert Laurence, The Convergence of Cross-
Boundary Enforcement Theories in American Indian Law: An Attempt
to Reconcile Full Faith and Credit, Comity and Asymmetry, 18
Quinnipiac L. Rev. 115, 125-26 (1998) (noting that once full
faith and credit principles are found to apply, the receiving
court is very restricted in the kinds of collateral attacks that
it is allowed to entertain and recognizing that [c]omity is less
restrictive a doctrine than full faith and credit).
11 There is no indication that a separate document was
entered amounting to a final judgment in the custody case. Civil
Rule 58 provides in pertinent part: Every judgment must be set
forth on a separate document distinct from any findings of fact,
conclusions of law, opinion, or memorandum. The Georges do not
argue that there is no appealable final judgment. Had that
argument been made after the appeal was commenced, we could have,
as an exercise of discretion, chosen to treat the appeal as a
petition for review. Alaska R. App. P. 402; see Municipality of
Anchorage v. Anderson, 37 P.3d 420, 421 n.5 (Alaska 2001) (noting
that appeal improperly brought may be treated as petition for
review, but review will be granted only where the sound policy
behind the rule requiring appeals to be taken only from final
judgments is outweighed); Bradley v. Bradley, 32 P.3d 372, 372
(Alaska 2001) (granting review of appeal of nonfinal judgment
authorizing writ of execution).
12 J.S. v. State, 50 P.3d 388, 391 (Alaska 2002) (citation
omitted) (applying independent review to superior court decision
holding that ICWA does not require active efforts to reunify
father with sons after he was convicted of sexually abusing
them).
13 John I, 982 P.2d at 744.
14 Id. at 752 (citing Bryan v. Itasca County, 426 U.S.
373, 392 (1976)).
15 25 U.S.C. 1903(1).
16 25 U.S.C. 1903(4). The children are Tlingit. The
parties do not dispute that the children are Indian children
within the meaning of ICWA.
17 25 U.S.C. 1911(d).
18 25 U.S.C. 1903(1).
19 John I, 982 P.2d at 747.
20 Id. at 746-47.
21 Id.
22 A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982).
23 Id. (citing 25 U.S.C. 1903(2) (Supp. 1981)).
24 Id.
25 ICWA applies only to specified child custody
proceedings, which are limited to foster care placement,
termination of parental rights, preadoptive placement, and
adoptive placement. Felix S. Cohen, Cohens Handbook of Federal
Indian Law 11.02[3], at 828 (Nell J. Newton et al. eds., 2005
ed.) (citing 25 U.S.C. 1903(1)). The state court proceedings
initiated by the Starrs and by the Georges were arguably foster
care placement proceedings within the meaning of ICWA since they
involved removing an Indian child from its parent for placement
in the home of a guardian where the parent could not have the
child returned upon demand. See 1903(1)(i). But subsection (i)
refers to temporary placement. This condition arguably was not
satisfied by the state court proceedings since the custody sought
did not purport to be temporary. The grant of exclusive
jurisdiction to an Indian tribe under 1911(a) of ICWA does not
apply to this case because the children did not reside on a
reservation. Although an adoption proceeding is within ICWAs
definition of a child custody proceeding, adoption proceedings
initiated in state court cannot be transferred to tribes under
1911(b). We do not decide here whether tribes have independent
jurisdiction over adoption proceedings such that their adoption
proceedings are child custody proceedings to which states must
give full faith and credit under 1911(d).
26 25 U.S.C. 1911(d).
27 Wall v. Stinson, 983 P.2d 736, 737 (Alaska 1999).
28 State, Dept of Pub. Safety v. Fann, 864 P.2d 533, 536
n.5 (Alaska 1993).
29 See Alaska R. Civ. P. 8(d) (Averments in a pleading to
which a responsive pleading is required . . . are admitted when
not denied in the responsive pleading.).
30 John v. Baker (John II), 30 P.3d 68, 72 (Alaska 2001)
(determining that party challenging validity of foreign judgment
has burden of proof).
31 Id.
32 Fann, 864 P.2d at 536.
33 John I, 982 P.2d at 762-64.
34 Id. at 763.
35 Evans v. Native Vill. of Selawik IRA Council, 65 P.3d
58, 59-60 (Alaska 2003).
36 In re Adoption of T.R.M., 525 N.E.2d 298, 306 (Ind.
1998) (noting that, although 1911(d) requires state court to
give full faith and credit to tribal proceedings to same extent
state court gives full faith and credit to orders of other
entities, all foreign judgments remain open to collateral attack
for constitutional infirmities).
37 Fann, 864 P.2d at 536 n.5 (quoting 47 Am. Jur. 2d
Judgments 1221 (1969)).
38 25 U.S.C. 1911(d).
39 U.S. Const. art. IV, 1.
40 28 U.S.C. 1738 (2006) ([J]udicial proceedings
. . . shall have the same full faith and credit in every court
within the United States and its Territories and Possessions as
they have by law or usage in the courts of such State, Territory
or Possession from which they are taken.). Congress enacted
1738 to implement the Full Faith and Credit Clause. Magnolia
Petroleum Co. v. Hunt, 320 U.S. 430, 437 (1943).
41 Kremer v. Chem. Constr. Corp., 456 U.S. 461, 482
(1982).
42 Id. at 481.
43 Aguchak v. Montgomery Ward Co., 520 P.2d 1352, 1356
(Alaska 1974) (quoting Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314-15 (1950)) (adopting the Mullane due process
standard for constitutionally effective notice under the Alaska
Constitution).
44 Evans, 65 P.3d at 60 (citing City of N. Pole v. Zabek,
934 P.2d 1292, 1297 (Alaska 1997); Walker v. Walker, 960 P.2d
620, 622 (Alaska 1998)).
45 See Siekawitch v. Siekawitch, 956 P.2d 447, 449 (Alaska
1998) (In a child custody proceeding, the parties are entitled to
a hearing that grants them the opportunity to present the quantum
of evidence needed to make an informed and principled
determination.) (citation and internal quotations omitted); see
also In re K.L.J., 813 P.2d 276, 279 (Alaska 1991) (recognizing
that the interest of a parent whose parental rights may be
terminated via an adoption petition is of the highest magnitude).
46 See Crowe v. E. Band of Cherokee Indians, Inc., 506
F.2d 1231, 1236 n.14 (4th Cir. 1974) (noting that [t]he
proceedings of the Council need not, of course, be conducted with
all of the trappings of a court of law).
47 Id.; see also Indian Civil Rights Act, 25 U.S.C. 1302
(2006) (No Indian tribes in exercising powers of self-government
shall . . . deprive any person of liberty or property without due
process of law. . . .); 2004 Formal Op. Atty Gen. No. 661-04-
0467, 2004 WL 2337177, at *12 (October 1, 2004):
[T]he state will defer to such tribal court
orders only if the tribe exercised
jurisdiction in a manner consistent with
ICWA, the tribe afforded due process to the
litigants in the tribal court (including the
opportunity to contest jurisdiction), and the
tribal court otherwise acted in a manner
consistent with the United States
Constitution . . . .
48 Hall v. McCormick, 580 A.2d 968, 969-70 (Vt. 1990)
(recognizing lack of notice exception to full faith and credit
but ultimately finding no denial of due process where defendant
had notice of proceeding and chose to appear by counsel).
49 Restatement (Second) Conflict of Laws 104 (1971).
50 See, e.g., Bastian v. Tuttle, 606 S.W.2d 808 (Mo. App.
1980) (declining to extend full faith and credit to judgment
where publication notice was constitutionally insufficient to put
on notice former resident who left the state intending not to
return); Keating v. Keating, 855 A.2d 80 (Pa. Super. 2004)
(refusing to afford full faith and credit to divorce decree where
wife had no notice or opportunity to be heard in Guam divorce
proceeding); R.R. Gable, Inc. v. Burrows, 649 P.2d 177 (Wash.
App. 1982) (holding that California default judgment is not
entitled to full faith and credit in Washington where defendants
were not given notice or opportunity to be heard in California
proceeding).
51 The superior court order stated, The Georges first
notice of the adoption proceeding was June 5, 2005 the date the
tribal court issued a resolution granting the Starrs request for
cultural adoption. The June 5 date appears to be incorrect; the
tribal resolutions state that the meeting was held and the
resolutions were approved on June 30.
52 See Mennonite Bd. of Missions v. Adams, 462 U.S. 791,
798 (1983) (determining that constructive notice alone does not
satisfy the mandate of Mullane) (citing Mullane, 339 U.S. at
317); see also Patterson v. City of Utica, 370 F.3d 322, 334-36
(2d Cir. 2004) (holding that city violated plaintiffs due process
rights by not giving plaintiff official notice of meeting which
would serve as name-clearing hearing even though plaintiff
learned of meeting through word of mouth and attended and
participated in hearing); Edwards v. Edwards, 801 P.2d 782, 788
(Or. 1990) (holding that, even assuming that in some word-of-
mouth fashion defendant received actual notice, defendants due
process rights were violated when plaintiff served defendant by
leaving summons in office of lawyer employed by defendant on
other matters).
53 State Farm Mut. Auto. Ins. Co. v. Lawrence, 26 P.3d
1074, 1077-78 (Alaska 2001) (refusing to address argument not
adequately raised at trial level).
54 25 U.S.C. 1911(c).
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