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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Asa'carsarmiut Tribal Council v. Wheeler (11/21/2014) sp-6967

Asa'carsarmiut Tribal Council v. Wheeler (11/21/2014) sp-6967

         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, email  




ASA'CARSARMIUT TRIBAL                                    )  

COUNCIL,                                                 )        Supreme Court No. S-15318  


                            Appellant,                   )        Superior Court No. 3AN-12-04581 CI  


          v.                                             )        O P I N I O N  


JOHN D. WHEELER III,                                     )        No. 6967 - November 21, 2014  


                            Appellee.                    )  


                   Appeal from the Superior Court of the State of Alaska, Third  


                   Judicial District, Anchorage, Andrew Guidi, Judge.  

                   Appearances:    Samuel  J.  Fortier,  Fortier  &  Mikko,  P.C.,  

                   Anchorage,           for     Appellant.            Carl      D.     Cook        and  


                   Whitney-Marie  K.  Bostick,  Law  Office  of  Carl  D.  Cook,  

                   P.C., Anchorage, for Appellee.  

                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  


                   Bolger, Justices.  

                   FABE, Chief Justice.  


                   J.W. is the son of Jeanette Myre, a member of the Asa'carsarmiut Tribe, and  


John Wheeler, a non-member.  In 2007 Myre petitioned the Asa'carsarmiut Tribal Court  


to assume jurisdiction over the custody of J.W.  After a hearing in which both parents  


participated,  the  tribal  court  awarded  Myre  primary  physical  custody  and  granted  


----------------------- Page 2-----------------------

Wheeler limited visitation rights.  In 2011 Wheeler kept J.W. at the end of a visitation  


period, alleging that he was concerned about J.W.'s safety if he were returned to Myre's  


custody.    Wheeler  also  initiated  custody  proceedings  in  state  superior  court.    Myre  


moved to enforce the 2007 tribal court custody order; the superior court found it to be  

a lawful custody order and returned J.W. to Myre's custody.  


                   In 2012 Myre was arrested for child endangerment, and the State of Alaska  


assumed protective custody of J.W.   Wheeler moved for modification of the custody  


order in the superior court.  The Asa'carsarmiut Tribal Council intervened in the superior  

court proceeding to argue that the superior court lacked jurisdiction to modify the tribal  


court custody order.  The superior court concluded it had modification jurisdiction and  


determined there had been substantially changed circumstances such that modification  

was in J.W.'s best interests.   

                    The superior court awarded Wheeler primary physical custody.  Neither  

Wheeler nor Myre has appealed the superior court's decision, but the tribal council  


appeals, arguing that the superior court lacked modification jurisdiction.  The narrow  


question before us in this appeal is thus whether the tribal council has standing to appeal  


the superior court's modification decision in light of the parents' election not to appeal  


that decision.  We conclude that under this circumstance, the tribal council does not have  

standing, and we therefore dismiss the appeal.  


          A.       Background And Tribal Court Proceedings  


                   J.W. was born in 2005 to John D. Wheeler III and Jeanette Myre.  Myre is  


a member of the Asa'carsarmiut Tribe, a federally recognized tribe,  and J.W. is eligible 

          1        Indian Entities Recognized and Eligible To Receive Services From the


United States Bureau of Indian Affairs, 78 Fed. Reg. 26,384, 26,388 (May 6, 2013)


                                                             -2-                                                          6967  

----------------------- Page 3-----------------------

for tribal membership.  Wheeler is not a tribal member and resides in Washington.  

                    In December 2007 Myre successfully petitioned the Asa'carsarmiut Tribal  


Court to assume jurisdiction over the custody of J.W.  The tribal court held a custody  

hearing that month, in which both Myre and Wheeler participated.  The tribal court  

awarded primary physical and sole legal custody to Myre, emphasizing the importance  

of  fostering  J.W.'s  awareness  of  his  Asa'carsarmiut  cultural  heritage  and  identity.  


Wheeler was granted limited visitation rights.  In its order, the tribal court noted that it  

would "retain jurisdiction over the custody of [J.W.]"  


                    In 2008 Wheeler petitioned the tribal court to modify the child support  


order and to request additional visitation with J.W.  The tribal court declined to modify  


the order and denied the request for additional visitation.  Wheeler also petitioned in  


2009 asking the tribal court to reopen the custody case on the ground that J.W. was old  


enough to travel between Alaska and Washington.  There is no evidence in the record  

that the tribal court responded to this petition.  


                    In December 2011 J.W. traveled to Washington to spend Christmas with  

Wheeler.  J.W. was scheduled to return to Alaska on December 30, but Wheeler kept  


J.W. in Washington.  On December 30 Wheeler emailed Jerald Reichlin, the lawyer for  


the tribal court, informing him that he believed that there had been "a dramatic change  

in circumstances" that impacted J.W.'s welfare.  Specifically, Wheeler informed Reichlin  


that he had been unable to contact Myre and that he believed that she was in hiding from  


the father of her other two children, George Johnson.  In his email, Wheeler wrote:  "I  


respectfully request a hearing before the Asa'Car[s]a[r]m[iu]t Tribal Council, seeking  


'full custody' of my son."  Two days later, Wheeler further informed Reichlin that Myre  


(current list of federally recognized tribes).  

                                                              -3-                                                           6967  

----------------------- Page 4-----------------------

had been on a "binge, blackout style, drunk" and that Johnson had made death threats to  


her; he indicated that he had spoken with Myre and that she had "agreed that [J.W.] was   

safer and in better care down here in Washington with [Wheeler]."  On January 3, 2012,  

Reichlin responded to Wheeler:  

                       I have received your correspondence and your notes and I  

                       shall forward them to the Tribe.  There is nothing before the  


                       Tribal Court at this moment.  [J.W.'s] travel arrangements  

                       were  between  you  and  Jeanette.    The  Tribal  Court  is  not  

                       involved in changes of travel plans.  If you wish to  file a  


                       motion  to  alter  custody  orders,  you  are  free  to  do  so.    I  


                       believe that you know the process; you will need to make  

                       your request in writing and support it with information you  


                       want the court to consider. . . . Also, you should be aware that  


                       you and Jeanette have latitude to alter your arrangements.  If  

                       the parties are in accord, unless there is some obvious harm  

                       to [J.W.], the Tribal Court will not ordinarily get involved in  

                       voluntary   changes   to   established   visitation   or   custody  


                       It does not appear from the record that Wheeler had further correspondence  


with Reichlin or the tribal court.  

                       In a later affidavit, Myre stated that in early January 2012 she contacted the  


tribal court for assistance in regaining custody of J.W.  She reported that the tribal court  


did not call her back for several days and that the tribal court administrator then told her  

that  the  tribal  court  was  unable  to  help  her.                              Myre  stated  that  another  tribal  court  


administrator later agreed to contact Wheeler, but that the tribal administrator told Myre  


that she had not received a response from Wheeler.  

            B.         Superior Court Proceedings  

                       On January 11, 2012, Wheeler filed a complaint for custody in superior  

court  in  Anchorage.    His  initial  complaint  did  not  disclose  the  prior  tribal  court  


proceedings or custody order.  The jurisdiction affidavit indicated that Myre and J.W.  


                                                                        -4-                                                                  6967

----------------------- Page 5-----------------------

had  resided  in  Anchorage  for  the  previous  seven  months,  from  June  2011  to  


December  2011.    On  February   8   Wheeler  filed  a  petition  for  a  domestic  violence  

protection order in which he disclosed the existence of the tribal court child custody  



                   Myre responded to Wheeler's custody complaint on February 10 by filing  


a motion to compel the return of J.W. and seeking a domestic violence protective order  

on the basis of custodial interference.  She also petitioned the superior court to register  


the tribal court child custody order and to enforce it on an expedited basis under the  


Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  Myre indicated  


that "she  will likely seek [a] corresponding modification of the tribal court order to  


reflect the need to limit and supervise Mr. Wheeler's future visitation and contact with  

[J.W.]"  There is no evidence in the record of any attempt by Myre to modify the custody  

order in tribal court.  

                   In  her  motion  for  expedited  consideration,  Myre  included  a  footnote  

regarding tribal court jurisdiction:  


                   Defendant would emphasize that her filing of this Petition is  

                   not and should not be construed as her express or implicit  


                   waiver of the tribal court's having exclusive and continuing  

                   jurisdiction over the parties or the subject matter of [J.W.'s]  

                   custody.  Therefore, while Plaintiff has filed this case with  

                   the implied (but not expressed in his Complaint) assertion  


                   that the Alaska state court has jurisdiction regarding custody  

                   issues, Defendant vigorously maintains that this court does  

                   not have subject matter jurisdiction to modify the custody  

                   order issued by the tribal court that is currently in place, and  


                   that jurisdiction lies only in the Alaska court's recognition  

                   and enforcement of that order.  

                   The superior court denied Myre's petition to register the tribal court custody  

order, concluding that "the Alaska legislature declined to include tribal court custody  


                                                             -5-                                                      6967

----------------------- Page 6-----------------------


orders within the scope of those orders that may be registered and enforced under [the  


UCCJEA]" and therefore "the statute must be interpreted as being limited to enforcement  


of state court child-custody determinations."  The superior court noted that Washington  

had included tribal court custody orders when it adopted the UCCJEA and that "Myre  

should  be  successful  in  registering  the  custody  order  in  the  specific  county  of  


Washington where [J.W.] is located, and thereby secure its enforcement by the superior  


court of that county."  The superior court "directed [Myre] to pursue enforcement of the  

order in the state of Washington," but it does not appear from the record that Myre  

pursued any action in Washington.  


                    The superior court held a domestic violence protection order hearing in  


February 2012 and issued  supplemental findings discussing the tribal court custody  


order.  Specifically, the superior court found that "Mr. Wheeler's retention of [J.W.]  


contravenes the established, lawful tribal court custody order as Ms. Myre is the lawful  

custodian."  The superior court therefore concluded that Wheeler had committed the  

crime of custodial interference; the superior court granted Myre's petition for a long-term  

domestic violence protection order against Wheeler and returned J.W. to Myre's custody.  


                    In October 2012 the State of Alaska assumed custody of J.W. and initiated  


a Child In Need of Aid (CINA) proceeding against Myre following an incident during  


which a vehicle driven by George Johnson with Myre, J.W., and her two other children  

as passengers was stopped by police officers.  Myre was arrested and charged with  


endangering the welfare of the children as a result of being impaired by intoxication.  


Johnson  was  arrested   and   charged  with  driving  under  the  influence  and  child  


endangerment.  Wheeler filed a motion in the superior court for immediate modification  

of   custody.      In   her   response   to   this   motion,   Myre   "recognize[d]   entirely   the  


appropriateness under the circumstances of modifying the interim custody arrangement  


in this matter so that [J.W.] [could] be suitably placed in a home that is best for him, and  

                                                               -6-                                                         6967

----------------------- Page 7-----------------------

also  under[stood]  that  such  placement  [would]  likely  be  with  his  biological  father."  


(Emphasis in original.)  But the superior court denied Wheeler's motion and stayed the  

custody action pending developments in the CINA proceeding.  

                     The  superior  court  scheduled  a  trial  on  the  custody  matter  for  early  



April 2013.  The week before trial, the Asa'carsarmiut Tribal Council  filed a motion to 


intervene, arguing that the superior court should either refer the custody dispute to the  


tribal court or dismiss the action on the basis of the tribal court's retained jurisdiction  


over the matter.  Wheeler opposed the tribal council's intervention, arguing that the  


motion was untimely and that the tribal council lacked a sufficient interest in the subject  


matter  of  the  dispute.    Myre  filed  a  non-opposition  to  the  tribal  council's  motion,  


agreeing with the tribal council that "[d]ismissal is warranted, because as the court of  


original jurisdiction, the [tribal court] is the proper forum to address and decide any  

application by either party for a modification of its previously issued and still-in-effect  

 [child custody order]."    

                     The  superior  court  concluded  that  the  tribal  council  did  not  meet  the  


requirements of intervention as a matter of right and that the intervention "is being made  


extremely late in this proceeding and at least a year after the Council knew or should  


have known not only that the case existed but that its 2007 custody order would not be  


registered."  The superior court also made clear its determination that the superior court  


proceedings  were  "in  no  way  in  derogation  of  the  2007  [tribal  court]  order  or  the  


Council's jurisdiction," and were "not designed to set aside or invalidate the 2007 order."  


Rather, the superior court concluded that Wheeler was "seeking to modify the earlier  


custody decision in light of substantial changes in circumstances of the parties that have  



                     In its appellant's brief, the tribal council indicates that it is the governing  


body of the Asa'carsarmiut Tribe of Mountain Village and that the tribal court is the  

judicial arm of the Asa'carsarmiut Tribe.    

                                                                 -7-                                                               6967  

----------------------- Page 8-----------------------


occurred over the years since the Council's order was issued" (emphasis in original) and  


that the superior court had concurrent jurisdiction with the tribal court to modify the  


child custody order.  Nevertheless, the superior court granted permissive intervention to  


the tribal council for the "limited purpose of defending its jurisdiction and preserving the  


issue for appeal."  The tribal council did not otherwise participate in the custody trial.  


                    At trial the superior court considered the testimony of several witnesses,  


including Wheeler and Myre, as well as a custody investigator's report.  In its findings  


of fact and conclusions of law, issued in early May 2013, the superior court held that it  

had "personal and subject matter jurisdiction over the parties, the minor child, and the  


custody issues in this matter" and that it was "in the best interest of the minor child that  

[Wheeler] be awarded primary physical and sole legal custody with [Myre] receiving  


visitation" on the condition that she maintain her sobriety.  The superior court also made  


findings relevant to the issue of changed circumstances since the February 2012 hearing  

(when  the  superior  court  found  Wheeler  had  committed  custodial  interference  in  


violation of the tribal court child custody order).  The superior court found that "there  


have been at least two relapses of alcohol abuse since then by [Myre], both of which  


involved conduct endangering the safety of the child," and that "there was a strong  


factual  basis  for  [Wheeler's]  concern  when  he  declined  to  return  the  child"  in  

December 2011.  The superior court noted that it was "particularly troubled" by the  

response of state agencies to Myre's behavior, which "placed [J.W.] at risk," and that  


"[t]he [c]ourt [was] not going to gamble with [J.W.'s] safety again."  The superior court  

adopted the custody investigator's analysis and conclusions and entered a final custody  


decree awarding Wheeler sole legal custody and primary physical custody.  Myre was  

granted visitation rights.  


                    Myre requested that the superior court stay and reconsider its final custody  

decree and findings of fact and conclusions of law.  The superior court declined to stay  

                                                                -8-                                                         6967

----------------------- Page 9-----------------------

enforcement of the decree but provided both Wheeler and the tribal council with an  


opportunity  to  respond  to  Myre's  reconsideration  motion  and  her  objections  to  the  

court's  findings  and  conclusions.    Both  Wheeler  and  the  tribal  council  submitted  


additional briefing, and because the record does not reflect any ruling on reconsideration  

by the superior court within 30 days of the responsive briefing, Myre's motion was  

deemed denied.3  

                    Neither   Myre   nor   Wheeler   appealed   the   superior   court's   custody  


modification   decree,   but   the   tribal   council                    filed   an   appeal   to   this   court   in  

September 2013.  Wheeler opposes the tribal council's appeal on standing grounds.  



                    "Issues of standing are questions of law that we review de novo."   "In  


reviewing  a  superior  court's  comity  determination  .  .  .  we  apply  our  independent  


judgment."    In applying de novo review and "exercising our independent judgment, we  


will  adopt  the  rule  of  law  that  is  most  persuasive  in  light  of  precedent, reason,  and  


          3         Alaska R. Civ. P. 77(k)(4) provides:  "The motion for reconsideration shall  

be decided by the court without oral argument.  If the motion for reconsideration has not  


been ruled upon by  the  court within 30 days . . . of the date of filing of a response  


requested by the court . . . the motion shall be taken as denied."  



                    Friends of Willow Lake, Inc. v. State, Dep't of Transp. & Pub. Facilities,  

Div. of Aviation & Airports , 280 P.3d 542, 546 (Alaska 2012).  

          5         John v. Baker  (John II), 30 P.3d 68, 71 (Alaska 2001).  

          6         John v. Baker  (John I), 982 P.2d 738, 744 (Alaska 1999).  

                                                              -9-                                                       6967

----------------------- Page 10-----------------------


          A.        The Tribal Council Lacks Standing To Bring This Appeal.  

                    This  case  presents  an  unusual  procedural  posture  in  that  neither  of  the  


parties who actually contested  custody in the superior court has appealed the superior  

court's  custody  order.    Instead,  the  tribal  council,  which  was  granted  permissive  


intervention by the superior court for the "limited purpose of defending its jurisdiction  

and  preserving  the  issue  for  appeal,"  brings  this  appeal  to  "vindicate  its  retained  



                    Wheeler has consistently opposed the tribal council's involvement in this  


case and  now  challenges the tribal council's standing  to  appeal the superior  court's  


custody order, arguing that the tribal council lacks a cognizable injury-in-fact.  The tribal  


council responds (1) that Wheeler did not raise the issue of the tribal council's standing  


in the superior court and therefore this court should not consider it on appeal; and (2) that  


this court's precedent requires only an "identifiable trifle" for a party to have "standing  

                                                   7 and the tribal council's sovereign interest and injury  

to fight out a question of principle,"                                                 

are  sufficient  under  this  standard.               We  conclude  that  the  tribal  council's  interest  in  


ensuring  recognition of its tribal court's custody orders is not sufficient to establish  


standing to bring this appeal of a child custody determination when neither parent has  

chosen to appeal the superior court's decision.  

          7        Ruckle v. Anchorage Sch. Dist. , 85 P.3d 1030, 1041 (Alaska 2004) (quoting  

Trustees for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987)).  

                                                             -10-                                                          6967  

----------------------- Page 11-----------------------

                    1.        Wheeler preserved his standing argument.  



                    "As a general rule, we will not consider arguments first raised on appeal." 


But we have recognized an exception to this general rule:  "We will consider arguments  

not raised explicitly in the [trial court] if the issue is '1) not dependent on any new or  


controverted facts; 2) closely related to the appellant's trial court arguments; and 3) could  

have been gleaned from the pleadings.' "9  

                    In  his  opposition  to  the  tribal  council's  motion  to  intervene,  Wheeler  

                                                                                                                 10             11  

                                                                                                                     and (b). 

contested the tribal council's intervention under both Alaska Civil Rule 24(a) 

          8         Askinuk Corp. v. Lower Yukon Sch. Dist.                    , 214 P.3d 259, 266 (Alaska 2009).  



                    McConnell v. State, Dep't of Health & Soc. Servs., Div. of Med. Assistance ,  


991 P.2d 178, 183 (Alaska 1999) (quoting State, Dep't of Revenue v. Gazaway, 793 P.2d  

1025, 1027 (Alaska 1990)).  

          10        Alaska R. Civ. P. 24(a) on intervention of right provides:  

                    Upon   timely   application   anyone   shall   be   permitted   to  

                    intervene in an action when the applicant claims an interest  


                    relating to the property or transaction which is the subject of  

                    the action and the applicant is so situated that the disposition  

                    of the action may as a practical matter impair or impede the  

                    applicant's   ability   to   protect   that   interest,   unless   the  


                    applicant's  interest  is  adequately  represented  by  existing  


          11        Alaska R. Civ. P. 24(b) on permissive intervention provides:  


                    Upon   timely   application   anyone   may   be   permitted   to  

                    intervene in an action when an applicant's claim or defense  


                    and  the  main  action  have  a  question  of  law  or  fact  in  


                    common. When a party to an action relies for ground of claim  

                    or defense upon any statute or executive order administered  


                    by a federal or state governmental officer or agency or upon  


                    any regulation, order, requirement, or agreement issued or  


                                                              -11-                                                         6967

----------------------- Page 12-----------------------


While  Wheeler  did  not  explicitly  contest  the  standing  of  the  tribal  council  in  his  

opposition,  he  did  argue  (1)  that  the  tribal  council  lacked  sufficient  "interest  in  the  


subject matter of the action" because "[t]he subject matter of these proceedings is not the  

integrity of the tribal court or its orders but the issue of custody in the best interests of  


the minor child"; and (2) that "the tribal council's interests in [its] 'inherent sovereignty'  

and comity of [its] orders . . . are not impaired by these proceedings."  

                    Wheeler's argument against the tribal council's standing on appeal certainly  


could have been predicted from his opposition to its intervention.  We have recognized  

that arguments about the sufficiency of an interest to intervene under Rule 24(a) are also  



relevant to the sufficiency of an interest to establish interest-injury standing. 


we  conclude  that  Wheeler's  arguments  against  the  tribal  council's  intervention  are  


related closely enough to his standing argument that we will consider the issue of the  

tribal council's standing.  


                    made pursuant to the statute or executive order, the officer or  


                    agency upon timely application may be permitted to intervene  

                    in  the  action.  In  exercising  its  discretion  the  court  shall  

                    consider  whether  the  intervention  will  unduly  delay  or  

                    prejudice the adjudication of the rights of the original parties.  

          12        See  Alaskans  for  a  Common  Language,  Inc.  v.  Kritz,  3  P.3d  906,  915  

(Alaska 2000) ("Under the interest-injury approach a party must have an interest which  


is adversely affected by the complained-of conduct. The degree of injury need not be  

great . . . .  This threshold is lower than the interest needed to satisfy Rule 24(a) where  


the interest must be 'direct, substantial, and significantly protectable.'  Because we held  


above that [the members of an association] have a sufficient interest to satisfy Alaska  


Civil Rule 24(a), they necessarily also satisfy that element of the associational standing  


requirement." (citations omitted)).  

                                                             -12-                                                        6967

----------------------- Page 13-----------------------

                   2.	       The tribal council fails to establish interest-injury standing to  

                             bring this appeal.  

                   "Standing is a rule of judicial self-restraint based on the principle that courts  


should not resolve abstract questions or issue advisory opinions."                                   There are several  


types of standing, but the tribal council makes clear in its brief that it "relies on interest- 


injury standing."  "To establish interest-injury standing plaintiffs must demonstrate that  


they have a sufficient personal stake in the outcome of the controversy and an interest  


which is adversely affected by the complained-of conduct."                                 

                             a.	       Characterization of the tribal council's interest and injury  

                   In its limited appearance at the superior court's custody trial, the tribal  


council stated that its concern was with "the dignity of the tribal court and the tribal  


court's orders" and that it did not intend to present evidence or otherwise participate in  


determining the best interests of J.W. or the appropriate custody arrangement.  On appeal  

the  tribal  council  similarly  characterizes  its  interest  as  "vindicat[ion  of]  its  retained  



                   It is far from self-evident that the governing body of a sovereign entity,  


such  as  the  tribal  council,  has  standing  to  bring  an  appeal  of  a  child  custody  

determination when the parents themselves do not appeal and are apparently satisfied  

with the trial court's decision.  The Indian Child Welfare Act (ICWA) provides for the  

                                                                                                          15   But ICWA  


right of tribal intervention in state court proceedings governed by the act.  

          13       Keller  v.  French ,  205  P.3d  299,  302  (Alaska  2009)  (internal  quotation  

marks and citations omitted).  

          14       Id. at 304 (internal quotation marks and citations omitted).  

          15       25 U.S.C.  1911 (2012) provides that "[i]n any State court proceeding for  

the foster care placement of, or termination of parental rights to, an Indian child, the  



                                                            -13-	                                                      6967

----------------------- Page 14-----------------------


does not apply to custody disputes between parents.                            The tribal council does not point  

to any case from any jurisdiction in which a tribe has intervened in an inter-parental  


custody dispute and appealed the custody decision even though neither of the parents  

appealed.  Nor does the tribal council cite to any analogous cases in which a state or  


foreign  country  has  intervened  in  a  custody  dispute  to  vindicate  its  sovereignty  or  

guarantee the dignity of its court's orders.   


                   In its initial briefing, the tribal council cites a single eminent domain case  


                                                                                                                the Ninth  

to support its argument.  In  United States v. City of Tacoma, Washington,  

Circuit  identified  multiple  bases  to  establish  the  United  States's  standing  to  sue  to  

invalidate a city's condemnation proceedings involving land Congress had allotted to  

tribal members, including injury to its property rights in the condemned land.18                                        The  

court noted that in addition to its rights as property holder and its status as trustee of  


tribal lands, "the United States has an independent, governmental interest when it has not  


been  made  a  party  in  condemnation  proceedings  of  restricted  Indian  lands."                                     This  


reference to an independent governmental interest, upon which the tribal council relies,  


Indian custodian of the child and the Indian child's tribe shall have a right to intervene  


at any point in the proceeding."  There is no evidence in the record that the tribal council  


chose to intervene in J.W.'s CINA proceeding, where it had a statutory right to do so  

under ICWA.  



                   John I , 982 P.2d 738, 747 (Alaska 1999) ("Based on this case law, the  


conclusions of the Bureau of Indian Affairs, and the purpose of ICWA as expressed in  


its text and legislative history, we conclude that ICWA does not apply to this inter- 

parental custody dispute.").  

          17        332 F.3d 574 (9th Cir. 2003).  

          18       See id. at 579.  

          19       Id. (citing  United States v. Hellard, 322 U.S. 363, 366 (1944)).  

                                                            -14-                                                       6967

----------------------- Page 15-----------------------


relates to the unique supervisory role of the federal government over Indian affairs, a role  


in  which  Congress  has  plenary  power  over  tribal  sovereignty  and  can  restrict  the  



alienation of tribal territory.                       While the tribal council certainly does have an interest in  



adjudicating the domestic affairs of its members,                                           City of Tacoma is inapposite to the  

question of the tribal council's independent standing to appeal in this child custody  




                        Following  oral  argument,  the  tribal  council  provided  this  court  with  


additional authority in support of its contention that it had standing to appeal.  But like  


City of Tacoma, the cases cited do not speak clearly or persuasively to the tribal council's  

standing to appeal in this matter.  The supplemental authority includes cases on ballot  

            20          See  Hellard , 322 U.S. at 368 ("Restricted Indian land is property in which       

the United States has an interest. . . . The governmental interest throughout the partition       

proceedings is as clear as it would be if the fee were in the United States. The United   

States as guardian of the Indians is necessarily interested either in obtaining partition in                                             

kind where that course conforms to its policy of preserving restricted land for the Indians                                              

or in seeing that the best possible price is obtained where a sale is desirable." (citations               

omitted));  United States v. Candelaria, 271 U.S. 432, 443-44 (1926) ("The Indians of   

the pueblo are wards of the United States, and hold their lands subject to the restriction   

that the same cannot be alienated in any wise without its consent.                                                   A judgment or decree  

which operates directly or indirectly to transfer the lands from the Indians, where the  

United States has not authorized or appeared in the suit, infringes that restriction. The  


United States has an interest in maintaining and enforcing the restriction, which cannot  


be affected by such a judgment or decree.").  

            21          See John I, 982 P.2d at 754-59.  

            22          Moreover,  City of Tacoma does not directly address the question of an  

intervenor's standing to appeal because the United States brought the original action and  


the defendant city raised the federal government's standing as a ground to dismiss the  


action.  See City of Tacoma, 332 F.3d at 578.  

                                                                          -15-                                                                     6967

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initiative sponsors' standing to appeal judicial invalidation of the initiative,23 a state's  



standing to appeal a suit in which it was a named defendant in the original action, 


the ability of governmental entities to appeal decisions that interfere with their statutory  


duties to the public.             None of these categories of cases is applicable here.  

                    The  tribal  council  also  cites  Matter  of  J.R.S. ,26                      a  case  in  which  we  


recognized a tribe's right to intervene in adoption proceedings of a child member before  


a superior court.  In J.R.S. we concluded that although ICWA did not explicitly grant  


tribes  a  right  to  intervene  in  adoption  proceedings,                             it  did  create  an  interest  in  


"defend[ing] the Act's preference system" that Civil Rule 24(a) was designed to protect,  

          23        See Yniguez v. Arizona, 939 F.2d 727 (9th Cir. 1991).  

          24        See State ex rel. Merrill v. Ohio Dep't of Natural Res.                              , 955 N.E.2d 935  

(Ohio 2011).  

          25        See SEC v. U.S. Realty & Improvement Co., 310 U.S. 434, 448 (1940)  


(permitting the SEC to intervene in and appeal bankruptcy proceedings because it is  


"specially charged by various statutes with the protection of the interests of the investing  


public"); Mary R. v. B. & R. Corp. , 196 Cal. Rptr. 871, 875 (Cal. App. 1983) (holding  


that  board  had  "standing  [to  collaterally  attack  gag  order]  based  on  its  interest  in  


fulfilling its statutory obligations to supervise and regulate the practice of medicine in  

this state and to investigate allegations of physician misconduct"); Schaghticoke Indians  

of Kent, Conn., Inc. v. Potter, 587 A.2d 139, 142 (Conn. 1991) (holding that state has  


standing to appeal an action  initiated by a tribe based on its "statutory obligation to  


oversee the . . . reservation," which made it "responsible under the statute for damage to  


the reservation and misuse of tribal funds . . . [and] thus authorized to appeal").  

          26        690 P.2d 10 (Alaska 1984).  



                    See id. at 15 ("The Act itself does not give a tribe the right to intervene in  

an  adoption  proceeding.");  Indian  Child  Welfare  Act,  25  U.S.C.    1911(c)  (2012)  

(creating  a  right  of  intervention  "[i]n  any  State  court  proceeding  for  the  foster  care  


placement of, or termination of parental rights to, an Indian child," but omitting any  

similar right in adoption proceedings).  

                                                              -16-                                                         6967

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and that the superior court therefore should have permitted the tribe to intervene as of  

        28                                                                                                           29 

right.      Unlike J.R.S. , this inter-parent custody dispute is not covered by ICWA.                                    And  

J.R.S. does not support the conclusion that the tribal council has standing to appeal in this  

case.  It is a case about intervening in an on-going proceeding, rather than appealing.  

The tribal council in this case seeks to extend an inter-parent custody dispute that the  


original parties did not seek to continue.  The law of litigant standing, aimed at ensuring  



that the courts do not attempt to "resolve abstract questions or issue advisory opinions," 

encompasses different considerations in these two situations.  


                              b.       Neither parent appealed.  

                    Myre  chose  not  to  file  an  appeal  of  the  superior  court's  custody  


modification  decision,  and  it  appears  that  at  one  point  she  agreed  that  it  would  be  


                                                                                            In considering the tribal  

appropriate for the superior court to enter an interim order. 


council's interest in bringing an appeal, we note that recognition of the tribal council's  


standing would prioritize its interest over that of Myre, who elected not to appeal the  


superior court's decision.  Allowing for the tribal council's standing in this appeal could  

lead to a situation where both parents choose to pursue modification in state court and  

          28        J.R.S. , 690 P.2d at 18.  

          29        See John I, 982 P.2d 738, 747 (Alaska 1999).  

          30        Keller   v.  French ,  205  P.3d  299,  302  (Alaska  2009)  (quoting Ruckle  v.  

Anchorage Sch. Dist. , 85 P.3d 1030, 1034 (Alaska 2004)).  

          31        Following her arrest and the State's assumption of protective custody of  

J.W., Myre filed a response to Wheeler's motion for immediate modification of custody  


in the superior court.  Her response "recognize[d] entirely the appropriateness under the  


circumstances of [the superior court] modifying the interim custody arrangement in this  


matter so that [J.W.] can be suitably placed in a home that is best for him, and also  


[understood]  that  such  placement  [would]  likely  be  with  his  biological  father."  

(Emphasis in original.)  

                                                             -17-                                                       6967

----------------------- Page 18-----------------------

are satisfied with the superior court's resolution of their custody modification dispute,  


                                                                                                             This would  

but the tribe appeals that modification decision on jurisdictional grounds. 

run counter to our statement in John v. Baker that "Native parents who live in Anchorage  


and do not wish to avail themselves of a distant tribal forum will still be able to resolve  


their custody disputes in Anchorage Superior Court."33  

                   We  emphasize  that  neither  party  seeking  custody  of  J.W.  appealed  the  

superior court's decision.  The court system exists to resolve cases or controversies that  

arise  between  parties,  and  its  proper  functioning  requires  careful  attention  to  those  

parties' wishes and actions.  Individuals and organizations may sincerely seek judicial  


acceptance of legal theories, but that sincerity does not expand the courts' role beyond  


resolving active cases or controversies at the request of involved parties.  

                   Our decision to dismiss this appeal should not be read as an invitation to  


grant tribal courts anything less than "the respect to which they are entitled as the judicial  


                                                     That respect continues to inform our analysis.  But  

institutions of sovereign entities."                                                                                    

the respect due to tribal courts does not translate into independent standing to appeal a  


superior  court's  inter-parent  child  custody  decision  on  jurisdictional  grounds  when  

neither party has chosen to appeal from the superior court decision. 

                    We conclude that because the parents elected not to appeal the superior  


court's  decision,  the  tribal  council's  interest  does  not  rise  to  the  level  necessary  to  


establish standing to appeal the child custody modification order.  

          32       Wheeler  does  not  argue  on  appeal  that  the  superior  court's  grant  of  

permissive intervention to the tribal council was improper, only that the tribal council  


lacks  standing  to  appeal.    The  propriety  of  the  superior  court's  grant  of  permissive  

intervention to the tribal council is therefore not before us.   

          33       John I , 982 P.2d at 761.  

          34       Simmonds v. Parks, 329 P.3d 995, 1010-11 (Alaska 2014).  

                                                            -18-                                                      6967

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             We DISMISS the tribal council's appeal for lack of standing.  

                                        -19-                                    6967

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