Simmonds v. Parks , 2014 Alas. LEXIS 144 ( 2014 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ROZELLA SIMMONDS and )
JEFF SIMMONDS, ) Supreme Court No. S-14103
)
Petitioners, ) Superior Court No. 4FA-09-02508 CI
)
v. ) OPINION
)
EDWARD PARKS and ) No. 6926 – July 18, 2014
BESSIE STEARMAN, )
)
Respondents, )
)
and )
)
STATE OF ALASKA, )
)
Intervenor-Respondent. )
)
Petition for Review from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks, Paul R. Lyle,
Judge.
Appearances: Erin C. Dougherty, Natalie A. Landreth,
Heather Kendall-Miller, and Matthew N. Newman, Native
American Rights Fund, Anchorage, for Petitioners. Jason A.
Weiner, Gazewood & Weiner, P.C., Fairbanks, for
Respondent Parks. Michael J. Wenstrup, Fairbanks, for
Respondent Stearman. Mary Ann Lundquist, Senior
Assistant Attorney General, Fairbanks, Julie Fields and
Jacqueline Schafer, Assistant Attorneys General, Anchorage,
and Michael C. Geraghty, Attorney General, Juneau, for
Intervenor-Respondent. Marguerite Humm, Holly Handler,
and Sydney Tarzwell, Alaska Legal Services Corporation,
Anchorage, for Amici Curiae Kenaitze Indian Tribe, Native
Village of Eek, Stony River Traditional Council, Native
Village of Mekoryuk, Umkumiut Tribal Council, and
Tuntutuliak Traditional Council.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
I. INTRODUCTION
The Minto Tribal Court terminated the parental rights of Edward Parks and
Bessie Stearman to their daughter S.P. At the termination hearing, the attorney for Parks
and Stearman was not permitted to present oral argument to the tribal court. Parks failed
to file an appeal with the Minto Court of Appeals and instead brought suit against S.P.’s
foster parents, the Simmondses, in the state superior court in an attempt to regain custody
of S.P. The Simmondses moved to dismiss Parks’s state lawsuit on the basis that the
tribal court judgment terminating parental rights was entitled to full faith and credit under
the Indian Child Welfare Act. The superior court denied the motion to dismiss,
concluding that full faith and credit should not be afforded because the tribal court had
denied Parks minimum due process by prohibiting his attorney from presenting oral
argument on his objections to tribal court jurisdiction based on his status as a non-tribal
member. Although the superior court recognized that oral argument is not a per se
requirement of minimum due process, the superior court concluded that the denial of oral
argument in this case deprived Parks of a meaningful opportunity to be heard because
Parks did not receive sufficient notice that his attorney would not be allowed to present
oral argument to the tribal court.
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The Simmondses petitioned this court for review. We remanded to the
superior court for further findings. On remand, the superior court reiterated its prior
conclusion of a violation of minimum due process and further concluded that the due
process error was not harmless because Parks’s objections to the Minto Tribal Court’s
jurisdiction might have had merit. The Simmondses brought a second petition for
review, and we again granted review. Because Parks failed to exhaust his remedies in
the Minto Court of Appeals, we conclude that his state court suit should have been
dismissed. We thus reverse the superior court’s decision and remand for dismissal of
Parks’s suit.
II. FACTS AND PROCEEDINGS
A. Tribal Affiliations Of S.P. And Her Parents
This petition is the culmination of almost six years of litigation involving
custody of S.P., the parental rights of her parents, Edward Parks and Bessie Stearman,
and the jurisdiction of the Minto Tribal Court. Stearman is a member of the Native
Village of Minto, a federally recognized tribe in Minto, Alaska.1 She was raised and
resided in Minto until 2001. Parks is an enrolled member of the Native Village of
Stevens, a federally recognized tribe in Stevens Village, Alaska.2 Parks is not a member
of the Native Village of Minto and has never lived in or been a resident of Minto.
The Minto Tribal Constitution provides that lineal descendants of tribal
members are “automatically eligible to be members of the Minto Tribe,” and the Minto
Tribal Court concluded on a number of occasions that “[u]nder the tribal constitution of
Minto [S.P.] is a Minto tribal member under the jurisdiction of the Tribal Court and
1
Indian Entities Recognized and Eligible to Receive Services from the
Bureau of Indian Affairs, 77 Fed. Reg. 47,868, 47,872-73 (Aug. 10, 2012) (providing the
current list of federally recognized tribes).
2
Id. We refer to the Native Village of Stevens as Stevens Village.
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eligible to apply for enrollment.” In November 2008, during the course of the Minto
Tribal Court’s custody proceedings, S.P. was formally enrolled in the Native Village of
Minto after Stearman submitted a tribal enrollment application on her behalf.
B. The Minto Tribal Court Took Emergency Custody Of S.P.
S.P. was born in December 2007 in Fairbanks. S.P.’s mother, Bessie
Stearman, has a history of substance abuse and arrests, and her three older children,
S.P.’s half-siblings, were in Minto Tribal Court custody prior to S.P.’s birth. On
December 7, 2007, Mishal Gaede, a tribal social worker in the Child Protection Services
Department of the Tanana Chiefs Conference,3 received a phone call from a screener
from the Office of Children’s Services (OCS) asking her if she would be willing to meet
an OCS staff member and Stearman at Fairbanks Memorial Hospital to develop a safety
plan for S.P. Gaede, who had previously contacted the Minto Tribal Court regarding
Stearman’s pregnancy, agreed to meet with the OCS staff member and Stearman. During
the meeting, Gaede informed Stearman of the Minto Tribal Court’s concern about S.P.’s
safety given Stearman’s history and the domestic violence history of Edward Parks,
S.P.’s presumed father.
On May 30, 2008, Stearman contacted Rozella Simmonds and asked if she
and her husband, Jeff Simmonds, would care for S.P., then six months old, while
Stearman was incarcerated for violating probation. Jeff Simmonds is Stearman’s first
cousin and is eligible for enrollment in the Native Village of Minto. The Simmondses
agreed, and Rozella informed Gaede of the arrangement.
On June 2, 2008, Gaede informed the Minto Tribal Court of the situation
via teleconference, and the tribal court took emergency temporary legal custody of S.P.,
3
The Tanana Chiefs Conference is a tribal consortium of Alaska Native
Villages in Interior Alaska, including the Native Village of Minto. TANANA CHIEFS
CONFERENCE , http://tananachiefs.org (last visited July 14, 2014).
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made her a ward of the court, and temporarily granted physical custody to the
Simmondses. Parks and Stearman were granted supervised visits with S.P. at the Tanana
Chiefs Conference office in Fairbanks.
Parks was working on the North Slope and was not contacted prior to the
June 2, 2008 emergency hearing. The day after the hearing, Gaede spoke with Parks and
mailed the emergency custody order to Parks’s employer in Prudhoe Bay. On June 6
Parks called Gaede to ask for his daughter back; Gaede informed him that she was in the
Simmondses’ custody and that he could petition the tribal court for an earlier hearing or
to arrange visitation with S.P. Parks called back later that day and indicated that he and
Stearman were “okay” with S.P. being with the Simmondses for the time being.
C. Parks Was Notified Of The Minto Tribal Court’s Second Hearing On
Custody Of S.P., But He Did Not Attend.
The Minto Tribal Court held another hearing regarding temporary custody
of S.P. on July 9, 2008. Stearman, Rozella Simmonds, Gaede, and Evelyn Parks,
Edward Parks’s mother, were present via teleconference. The tribal court records from
this hearing indicate that Stearman was given written notice of the hearing, was present
at the hearing, and testified about her incarceration and rehabilitation efforts. Edward
Parks was also given written notice of the hearing, but he was not present. The tribal
court’s contemporaneous notes indicate that Parks was sick and “home in bed.” His
mother, Evelyn, did address the tribal court, asking that S.P. be placed in her custody
while Stearman was incarcerated; she also stated that Edward Parks had supported S.P.
and questioned why she had not been contacted to take S.P. The tribal court informed
her that she needed to complete a foster care application and a home safety check prior
to placement, per tribal foster care policy and federal regulations; she was given an
application. The notes also indicated that the tribal court would notify Stevens Village
as a courtesy.
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The Minto Tribal Court’s order reiterated the court’s jurisdiction over S.P.
The tribal court found that Parks’s residence in Fairbanks was unsuitable for an infant;
that it was in S.P.’s best interests for the tribal court to continue temporary legal custody;
and that it was in her best interests for the Simmondses to continue temporary physical
custody. The tribal court required that Stearman continue with her rehabilitation efforts
and that Parks obtain an anger management assessment, follow its recommendations, and
prepare safe, suitable housing for an infant.
D. The Minto Tribal Court Held Its Third Hearing. Parks Attended,
Participated, And May Have Objected To The Court’s Jurisdiction.
The Minto Tribal Court held a hearing on temporary custody of S.P. on
August 28, 2008, in which Parks participated telephonically after receiving written
notice. Parks stated that he wanted his daughter back; the tribal court’s order stated that
while Parks agreed with the current foster placement, he thought S.P. could be cared for
just as properly by his relatives in Anchorage. He also testified about a recent incident
with the Fairbanks police and about an arrest warrant for a January 2008 domestic
violence incident with Stearman. The tribal court issued an order continuing the
temporary custody arrangements and repeating its requirement that Parks obtain and
follow the recommendations of an anger management assessment, prepare a suitable
home, and complete parenting classes.
Parks claims that he “told the members of the Minto Tribal Court that the
Minto Tribal Court had no legal authority to involve itself in matters relating to the
custody of S.P.” There is no mention of this objection to the tribal court’s authority in
the court’s hearing notes.
After the August hearing, Parks maintained contact with Gaede, who
offered to help him write letters to Stevens Village and to the Minto Tribal Court
requesting help in paying for an anger management assessment. Gaede also gave Parks
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a petition to ask the tribal court to modify its requirements. Later, Parks’s regular
visitation with S.P. was suspended by a temporary protective order issued by the tribal
court after Parks exhibited angry and aggressive behavior with Gaede.
E. Parks Filed A Petition With The Minto Tribal Court To Expedite The
Custody Case. The Court Held Its Fourth And Fifth Hearings. Parks
Attended, Participated, And Clearly Objected To The Court’s
Jurisdiction.
On November 4, 2008, Parks filed a petition with the Minto Tribal Court
to resume regular visitation with S.P. and to expedite the custody case “as soon as
reasonably possible.” On December 8, 2008, the tribal court held another temporary
custody hearing. Parks was given written notice of the hearing and participated
telephonically. Stearman was provided with notice of the hearing but did not participate
due to her incarceration. Parks’s mother, Evelyn, and a Stevens Village social worker
also participated. Parks asked that S.P. be returned to his custody; he testified about his
work and living situation, his relationship with S.P., the possibility of living with S.P. in
his sister’s home in Anchorage, and anger management classes. The Stevens Village
social worker reported that she had done a home visit at Parks’s sister’s house and found
it acceptable; she also asked about the barriers to returning S.P. to Parks’s custody. The
tribal court concluded that the temporary custody arrangement should continue; the order
provided for parental visitation and reiterated the court’s reunification requirements,
including the requirement that Parks complete an anger management program.
At the hearing, Parks objected to the Minto Tribal Court’s jurisdiction, stating, “I
don’t agree w[ith] your jurisdiction over me.” It appears that the tribal court responded
by advising Parks to hire a lawyer to apply for an order to show cause.
The tribal court held another hearing on March 25, 2009, in which Parks
participated. Parks again testified and indicated that he could no longer afford the anger
management program he had begun. The tribal court continued the temporary custody
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arrangement and reminded Parks that the tribal court required him to attend and complete
an anger management program and parenting classes in order to be reunified with S.P.
When Parks called the next day, Gaede instructed him to write to the tribal court to
request help in paying for the program; Parks did not request help from the court.
F. Parks Retained An Attorney, Who Sent A Letter To The Minto Tribal
Court Clerk In Which He Objected To The Minto Tribal Court’s
Jurisdiction.
Parks retained attorney Donald Mitchell to represent him in his attempts to
regain custody of S.P. On April 16, 2009, Mitchell faxed a letter on Parks’s behalf to
Michael Walleri, the general counsel of the Tanana Chiefs Conference, in which Mitchell
objected to the Minto Tribal Court’s jurisdiction:
[I]t is my long-held view that neither the Athabascan
residents of the Native Village of Minto nor the Alaska
Native residents of any other community that Congress
designated as a “Native village” for the purposes of the
Alaska Native Claims Settlement Act are members of a
“federally recognized tribe” that possesses governmental
authority of any kind, including jurisdiction to involve itself
in child custody matters.
....
[P]lease be advised that if [the Tanana Chiefs Conference]
does not arrange for Mr. Parks to be reunited with his
daughter I will file a civil action in the U.S. District Court
against the Native Village of Minto, [the Tanana Chiefs
Conference], Jeffrey and Rozella Simmonds, and — if it turns
out that it participated with [the Tanana Chiefs Conference]
in placing [S.P.] in the clutches of the Tribal Court for the
Native Village of Minto — the Office of Children’s Services.
That action will seek declaratory and injunctive relief and
money damages and it will decide once and for all whether,
in Alaska, Tribal Courts are the ersatz institutions that I and
many others believe them to be.
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Mitchell also sent this letter to Lori Baker, who serves as the Chief of the
Native Village of Minto and the Clerk of the Minto Tribal Court.
G. Parks And Stearman Removed S.P. From Her Foster Home On The
Advice Of Mitchell. S.P. Was Returned Under Police Escort.
On May 5, 2009, Parks and Stearman went to the Simmondses home while
Jeff and Rozella were out and removed S.P., leaving another letter written by Mitchell.
Rozella Simmonds informed Gaede, who contacted the Fairbanks police and reported
that a foster child in Minto Tribal Court custody had been abducted. A police officer
stopped the car in which Parks and Stearman were transporting S.P. Parks returned to
the Fairbanks police station with a police escort, and S.P. was returned to the
Simmondses.
Parks and Stearman took S.P. from the Simmondses’ home on the advice
of Mitchell. Mitchell’s second letter, which was left at the Simmondses’ home, was
dated May 4, 2009, and copied to Walleri, Gaede, OCS, and the Fairbanks Police
Department. In the letter, Mitchell wrote:
[T]he Minto Tribal Court has no legal jurisdiction of any kind
to invent its own child custody proceedings. And it
particularly has no jurisdiction of any kind to involve itself in
matters relating to the custody of [S.P.].
....
For that reason, please be further advised that I have advised
Mr. Parks and Ms. Stearman that they have the parental rights
that the Alaska statutes grant to them to have physical
custody of their daughter . . . . Acting on that advice, they
have taken physical custody of [S.P.] . . . .
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H. The Minto Tribal Court Held A Parental Rights Termination Hearing.
Parks Was Represented By Mitchell At The Hearing, But Mitchell
Was Not Permitted To Directly Address The Court. The Court
Terminated The Parental Rights Of Parks And Stearman.
On May 7, 2009, the Minto Tribal Court held a hearing on termination of
the parental rights of Parks and Stearman. Both Parks and Stearman received notice of
the hearing and attended via teleconference from Fairbanks. Parks’s attorney, Mitchell,
also attended.
Before the hearing, a Tanana Chiefs Conference staff member informed
Parks that the tribal court would not permit his attorney to directly address the tribal
court; only the parties, their witnesses, or lay advocates were permitted to address the
tribal court.
Parks acknowledges receiving this information, and he did not object to this
restriction on his attorney’s participation during the May 7 hearing. He also did not
object to the tribal court’s jurisdiction at this hearing.
At the May 7 hearing, Parks and Stearman testified on their own behalf, and
Evelyn Parks and the Stevens Village social worker also testified on behalf of Parks.
Mitchell was present at the hearing and permitted to speak with Parks and Stearman, but
he was not permitted to speak directly to the tribal court.
The tribal court’s May 7 order noted that Parks had failed to complete an
anger management program, which was a requirement for reunification, and that Parks
continued to be a threat to tribal staff and to the Simmondses, which had resulted in
multiple tribal court protective orders against him. The tribal court concluded that “[b]y
clear and convincing evidence, it is in the best interest of [S.P.] to terminate the parental
rights of [Stearman and Parks] due to failure to provide a suitable home and support for
[S.P.] and the volatile nature of [Parks].” A subsequent tribal court order granted
permanent custody of S.P. to the Simmondses.
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I. The Notice Given To Parks Prior To The May 7 Hearing Is Disputed.
The parties dispute whether Parks and Stearman were notified of the Minto
Tribal Court’s limitation on attorney participation prior to the May 7 hearing. It is
undisputed that by the time of that hearing, Parks had been given written notice of four
previous hearings conducted by the tribal court and personally participated in three of
them. He had also presented at least one oral objection to the tribal court’s jurisdiction
over him, and his attorney had submitted a letter which detailed his jurisdictional
objections to the Minto Tribal Court Clerk.
The Minto Tribal Court’s written Notice of Hearing informs litigants that
“YOU HAVE THE RIGHT TO PRESENT WITNESSES, PRESENT YOUR SIDE OF
THE CASE, AND TO QUESTION ANY WITNESSES. Any paperwork or evidence
you wish the court to consider in the hearing may be sent to the [Minto Tribal Court]
address.” Parks also received verbal notice of the hearings.
In a sworn declaration, Lori Baker, the Minto Tribal Court Clerk, detailed
the court’s general notice procedures and the particular notice given to Parks:
8. According to our ordinances, we are permitted to give
verbal notice of hearings. When I do this, I tell the parties
that they can bring their attorneys to the court, that they can
bring papers or evidence or send them in advance, that the
attorneys can talk to their clients in the court, but that the
Court itself may not allow the attorneys to speak to the court.
9. I worked on the case with Mr. Parks and I have
specific memories of providing him with verbal notice of
hearings on several occasions. I told him the same things that
I always tell parties that I described in the paragraph above.
Baker’s declaration also discussed the rationale underlying the tribal court’s
policy that permits attorneys to be present at hearings and to advise their clients but not
to speak directly to the judges:
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First, this is our tradition, our way of solving disputes, and
we have always done things this way. Our judges solve
problems by speaking directly to the people involved.
Second, professional attorneys have an approach that is
aggressive and confrontational and is not appropriate for our
court; we do not permit our judges to be spoken to in this
way. Third, our judges are elders or other respected people
in the Tribe, but none of them are trained lawyers so they do
not understand legal terminology. Instead, our judges
implement traditional law and make decisions based on our
laws and values.
Gaede, who participated in all of the tribal court hearings regarding S.P.,
further commented on the tribal court’s policy: “Lawyers are allowed to sit in on the
hearings and to talk to their clients and to write notes to them during the hearings. The
only restriction I have seen on the lawyers in this region is that tribal courts may not
allow them to speak directly to the judges.”
J. Parks Received Information On Appealing To The Minto Court Of
Appeals. Parks Did Not File An Appeal.
Shortly after the termination of his parental rights, Parks requested
information on written Minto law regarding the tribal court and parental rights. He was
sent the applicable Minto Tribal Court judicial code, information on the Minto Court of
Appeals, and a blank appellate petition form.
The current Minto Judicial Code (dated July 22, 2010) details the tribal
court appellate process and provides that “[t]he purpose of the Minto Court of Appeals
is not to re-hear cases, but to review cases for possible inconsistent application of tribal
law and/or violations of fundamental fairness.” An earlier version of the judicial code
was provided to Parks in 2009. Parks does not dispute receiving the blank appellate
petition form and information on the Minto Court of Appeals.
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The information sent to Parks provided instructions on how to file an appeal
with the Minto Court of Appeals, including the instruction to file a “brief statement of
why the Appellant believes that the Order deserves a hearing by the Minto Court of
Appeals.”4 (Emphasis omitted.) There were no page limits or substantive restrictions
placed on the appellant’s statement of appeal, and there was no restriction on the
participation of an attorney in preparing the statement of appeal.
Parks did not file an appeal with the Minto Court of Appeals.
K. Parks Brought Suit In Federal District Court And Alaska Superior
Court To Regain Custody Of S.P. The Federal Case Was Dismissed.
On May 12, 2009, five days after the termination of his parental rights,
Parks, represented by Mitchell, filed a declaratory judgment action in the U.S. District
Court for the District of Alaska. The gravamen of Parks’s federal complaint was that the
Native Village of Minto is not a federally recognized tribe, despite explicit recognition
as such by the federal government, and that it therefore did not have authority to
establish a tribal court or involve itself in child custody matters.
On September 17, 2009, Parks also filed a complaint with the Alaska
Superior Court in Fairbanks requesting physical custody of S.P.
The federal district court concluded that the Native Village of Minto is a
federally recognized tribe and “that the Native Village of Minto and the State of Alaska
have concurrent jurisdiction as to child custody matters such as are raised in the tribal
and state court proceedings.”5 The federal district court concluded that abstention
4
The Minto Judicial Code was revised and the 2010 version stated that “[t]he
Notice of Appeal shall contain a statement of why the Appellant believes that the case
should come before the Minto Court of Appeals.”
5
S.P. ex rel. Parks v. Native Village of Minto, No. 3:09-CV-0092 HRH, 2009
WL 9124375, at *7 (D. Alaska Dec. 2, 2009).
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principles applied and dismissed Parks’s federal complaint with prejudice.6 Parks
appealed this dismissal to the U.S. Court of Appeals for the Ninth Circuit, where the
dismissal was affirmed.7
L. The Native Village Of Minto And The Minto Tribal Court Moved To
Dismiss The Superior Court Case. The Superior Court Denied The
Motion To Dismiss, Concluding That The Minto Tribal Court’s
Judgment Was Not Entitled To Full Faith And Credit Because Parks
Had Been Denied Minimum Due Process When His Attorney Was Not
Permitted To Directly Address The Tribal Court.
In the state superior court proceeding, the Native Village of Minto and the
Minto Tribal Court moved that “[f]ull faith and credit and/or comity should be given to
the Orders of the Minto Tribal Court” under the Indian Child Welfare Act (ICWA)8 and
that Parks’s complaint should be dismissed with prejudice. In his opposition to the
motion to dismiss, Parks, represented by Mitchell, repeated his argument that the Native
Village of Minto is not a federally recognized tribe and that the superior court should
disregard precedent to the contrary from the U.S. District Court, the Ninth Circuit, and
the Alaska Supreme Court.
The superior court denied the motion to dismiss. The superior court
commented that “Parks’[s] jurisdictional objections to the exercise of tribal authority in
this case are complex, esoteric, rooted in a complicated history and well beyond the ken
of most lay people or lay advocates to understand or explain.” The superior court
concluded that “[w]hen Parks’[s] attorney was prohibited from speaking at the outset of
the termination trial, Parks was denied a meaningful opportunity to present his
6
Id. at *7-8.
7
S.P. ex. rel. Parks v. Native Village of Minto, 443 F. App’x 264, 266 (9th
Cir. 2011).
8
25 U.S.C. §§ 1901-1963 (2012).
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jurisdictional objections to the exercise of Minto’s tribal authority. Therefore, he was
denied minimum due process under the U.S. and Alaska Constitutions.” The superior
court concluded that because of this due process violation, full faith and credit could not
be afforded to the Minto Tribal Court’s order terminating Parks’s parental rights.
M. The Simmondses Petitioned This Court To Review The Superior
Court’s Denial Of Their Motion To Dismiss. We Granted The Petition
And Remanded To The Superior Court.
The Simmondses, now represented by the Native American Rights Fund,
filed a petition for review by this court, asking us to review the superior court’s due
process and full faith and credit conclusions. We granted the petition and remanded the
case to the superior court to develop the evidentiary record and to make findings and
conclusions on a number of specific questions regarding the tribal court proceedings,
including whether Parks was given an opportunity to make his jurisdictional arguments
on his own or in writing; why Parks was not allowed oral argument by counsel and
whether that denial amounted to a due process violation; whether the proceedings were
recorded, and if not, why not; and whether any possible due process violations could be
characterized as harmless error, particularly in light of our decision in State v. Native
Village of Tanana,9 which addressed certain aspects of tribal court jurisdiction and the
possible application of full faith and credit under ICWA.
N. On Remand The Superior Court Concluded That Parks Had Been
Denied Minimum Due Process And That The Denial Could Not Be
Considered Harmless Error Because It Was An Open Question
Whether The Minto Tribal Court Had Jurisdiction Over Parks As A
Nonmember.
No party requested an evidentiary hearing on remand. The parties
submitted supplemental briefing, and the superior court held oral argument. The superior
9
249 P.3d 734 (Alaska 2011).
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court again refused to dismiss the case and concluded that the Minto Tribal Court’s
judgment was not entitled to full faith and credit under ICWA because Parks “was denied
a meaningful opportunity to be heard on his jurisdictional challenges.”
The superior court concluded that “an essential element of due process [is]
the right to be meaningfully represented by counsel at all stages of the [parental rights
termination] proceedings, at least where the parties retain counsel” and that “Parks’[s]
attorney was not given an opportunity to speak (orally or in writing) for Parks at any
stage of the proceedings.” The superior court found that Parks’s attorney was not
permitted oral argument at the May 7 termination hearing; the superior court also found
that although Parks’s attorney was permitted to submit written arguments to the tribal
court, there were factual disputes as to whether Parks had notice of this right and whether
the tribal court ever received Parks’s attorney’s April 16 letter, which had been submitted
to the tribal court clerk. The superior court found that the tribal court’s written notices
of hearing were “deficient in that they do not advise litigants that lawyers will not be
permitted to speak to tribal judges. More importantly, the written notices do not state
that legal arguments may only be presented in writing.” The superior court’s finding that
Parks’s attorney was not given an opportunity to submit written argumentation was key
to its denial of full faith and credit because the superior court also concluded that
“[m]inimal due process does not require the opportunity for oral argument.”
The superior court also addressed the issue whether any due process
violations were harmless beyond a reasonable doubt if Parks’s jurisdictional arguments
lacked merit. The superior court concluded that Parks’s argument that the Native Village
of Minto is not a federally recognized tribe, which was the primary basis for Parks’s
jurisdictional objection throughout the multiple litigations, was definitively rejected in
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John v. Baker (John I),10 In re C.R.H.,11 and, most recently, McCrary v. Ivanoff Bay
Village.12 Similarly, the superior court concluded that Parks’s argument that Alaska
tribes were entirely without authority to initiate ICWA-defined child protection
proceedings outside of Indian Country was definitively rejected by this court in State v.
Native Village of Tanana.13
But the superior court concluded that “the due process violations were not
harmless beyond a reasonable doubt on the still-undecided issues of: (1) the scope of
tribal inherent authority to initiate ICWA-defined parental rights termination action
against a nonmember parent, (2) whether parents may object to tribal court jurisdiction
in such cases[,] and (3) whether Parks had minimum contacts with the tribe.”14 The
superior court’s decision included an extensive discussion of the subject matter
jurisdiction of tribal courts based on its interpretation of the United States Supreme
Court’s decision in Montana v. United States.15 The superior court concluded that “there
is arguably an open question after John v. Baker concerning whether a child’s tribal
membership (or eligibility for membership) is, standing alone, a sufficient basis for
jurisdiction where one of the parents is a non-consenting nonmember of the tribe.”
(Emphasis in original.) The superior court therefore concluded that “[i]t was not
harmless error beyond a reasonable doubt for the Minto Tribal Court to have failed to
10
982 P.2d 738, 749-50 (Alaska 1999).
11
29 P.3d 849, 851 n.5 (Alaska 2001).
12
265 P.3d 337, 339-42 (Alaska 2011).
13
249 P.3d at 750-52.
14
Cf. id. at 751-52 (expressly leaving these questions open for later
consideration).
15
450 U.S. 544 (1981).
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provide a meaningful opportunity for Parks to challenge Minto’s jurisdiction over him
based on his lack of membership in the tribe.”
O. The Simmondses Brought A Second Petition To Review The Superior
Court’s Minimum Due Process And Jurisdictional Conclusions. We
Granted The Petition.
The Simmondses brought a second petition for review, asking this court to
reverse the superior court’s refusal to give full faith and credit to the Minto Tribal
Court’s judgment and dismiss Parks’s state court suit; in particular, the Simmondses
asked this court to reverse the superior court’s conclusions on due process and tribal
court jurisdiction. The State of Alaska intervened in support of review and in support
of affirming the superior court’s order. We granted the second petition on the following
questions:
(1) Did the Minto Tribal Court have subject matter
jurisdiction to terminate Parks’s parental rights?
(2) Did the Minto Tribal Court have personal jurisdiction
over Parks and S.P.? Did Parks consent to the jurisdiction of
the Minto Tribal Court? Did Parks as a non-[tribal member]
parent have the right to transfer his case from the Minto
Tribal Court to state court?
(3) Did the Minto Tribal Court provide Parks with a
meaningful opportunity to present his case when it refused to
let his attorney speak for him in the tribal court?
(4) Did the Minto Tribal Court provide Parks with
adequate notice that his attorney would only be able to make
arguments by submitting them in writing beforehand?
(5) If Parks was denied a meaningful opportunity to be
heard in the tribal court, was the denial prejudicial if the
Minto Tribal Court had jurisdiction?
(6) What effect, if any, does Parks’s failure to exhaust his
remedies by appealing in the tribal court have on his due
process claim?
-18- 6926
(7) Was the issue of jurisdiction fully and fairly litigated
in the Minto Tribal Court?
(8) If the tribal court order is not entitled to full faith and
credit, what is the appropriate remedy? If the tribal court
order is vacated, should the instant action be converted to a
[Child-in-Need-of-Aid] proceeding, remanded to the Minto
Tribal Court for further proceedings, or remanded to the
superior court?
Parks and Stearman are Respondents to the petition, and the State of Alaska
is Intervenor-Respondent.16 A number of Alaska Native Villages collectively have
submitted an amicus curiae brief in support of the Petitioners’ position that this court
should reverse the superior court and order dismissal of the state court action.
III. STANDARDS OF REVIEW
This case involves questions of both fact and law. “We review factual
findings for clear error, and will uphold the superior court’s findings unless we are left
with a definite and firm conviction on the entire record that a mistake has been made,
even though there may be evidence to support the finding.”17 “We evaluate de novo the
16
Bessie Stearman was not a party to the original complaint for custody of a
minor child brought by Parks in the superior court. At various later stages in the superior
court proceedings, she has been listed both as a defendant and as a plaintiff. Stearman
did not file a response when the Simmondses petitioned this court to review the superior
court’s decision on remand, but she did submit briefing and participate in oral argument
before us. Stearman adopts and relies on the State’s and Parks’s arguments on the
questions presented in this petition.
Like Parks, Stearman failed to appeal the termination of her parental rights
to the Minto Court of Appeals. Therefore, our decision — that because Parks failed to
exhaust available tribal court appellate remedies, he is not permitted to relitigate his
minimum due process and jurisdictional claims in state court — applies equally to
Stearman.
17
John v. Baker (John II), 30 P.3d 68, 71 (Alaska 2001) (quotation marks
(continued...)
-19- 6926
scope of tribal jurisdiction and the meaning of federal statutes.”18 “Under de novo
review, we apply ‘the rule of law that is most persuasive in light of precedent, reason,
and policy.’ ”19 “When construing statutes that affect the rights of Native Americans, we
liberally construe these statutes and resolve ambiguities in favor of Native Americans.”20
IV. DISCUSSION
A. Overview
This petition comes before us after the superior court on remand refused to
dismiss Parks’s state court action, concluding that the Minto Tribal Court’s judgment
terminating Parks’s parental rights was not entitled to full faith and credit under ICWA’s
§ 1911(d)21 because the tribal court violated minimum due process. The superior court
based its decision on its conclusion that Parks suffered “the complete denial of an
opportunity to be meaningfully heard on the jurisdictional challenges raised in this case.”
17
(...continued)
omitted).
18
Tanana, 249 P.3d at 737 (citing John I, 982 P.2d 738, 744 (Alaska 1999)).
19
Id. (citation omitted).
20
Starr v. George, 175 P.3d 50, 54 (Alaska 2008) (citing John I, 982 P.2d at
752 (citing Bryan v. Itasca Cnty., 426 U.S. 373, 392 (1976))).
21
25 U.S.C. § 1911(d) (2012) provides:
The United States, every State, every territory or possession
of the United States, and every Indian tribe shall give full
faith and credit to the public acts, records, and judicial
proceedings of any Indian tribe applicable to Indian child
custody proceedings to the same extent that such entities give
full faith and credit to the public acts, records, and judicial
proceedings of any other entity.
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(Emphasis in original.) This conclusion was based on factual findings regarding the
notice given Parks regarding attorney participation.
Any consideration of a tribal court’s judgment in an ICWA-defined child
custody proceeding must begin with “the established principle under federal law that
‘Indian tribes retain those fundamental attributes of sovereignty . . . which have not been
divested by Congress or by necessary implication of the tribe’s dependent status’ ”22 and
Congress’s express finding in ICWA that “there is no resource that is more vital to the
continued existence and integrity of Indian tribes than their children.”23 Through
ICWA’s full faith and credit clause, Congress mandates that states respect a tribe’s vital
and sovereign interests in its children. This requires that we give the same respect to
tribal court judgments that we give to judgments from a sister state.24 As a measure of
that respect, we have refused to allow a party to collaterally attack a sister state’s
judgment when the party failed to appeal in that state’s courts.25 Looking to federal law
to interpret ICWA’s full faith and credit mandate,26 we find persuasive the policies
22
John I, 982 P.2d at 751 (quoting Merrion v. Jicarilla Apache Tribe, 455
U.S. 130, 146 (1982)) (omission in original).
23
25 U.S.C. § 1901(3).
24
25 U.S.C. § 1911(d) (“[E]very State . . . shall give full faith and credit to
the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian
child custody proceedings to the same extent that [it] give[s] full faith and credit to the
public acts, records, and judicial proceedings of any other [State].”); Starr, 175 P.3d at
55.
25
Wall v. Stinson, 983 P.2d 736, 741 (Alaska 1999) (“The remedy for legal
error is appeal, not collateral attack.”).
26
Starr, 175 P.3d at 57 (“ICWA requires the state to give the same credit to
tribal court judgments it gives to the judgments of the courts of sister states. We
(continued...)
-21- 6926
underlying the federal doctrine of exhaustion of tribal remedies,27 and we adopt that
doctrine in this context. Unless one of the exceptions to the exhaustion doctrine
discussed below applies,28 we will not allow a party to challenge a tribal court’s
judgment in an ICWA-defined child custody proceeding in Alaska state court without
first exhausting available tribal court appellate remedies. Because Parks failed to exhaust
available tribal court remedies by appealing to the Minto Court of Appeals, and because
none of the exceptions to the exhaustion doctrine apply, we conclude that he is not
permitted to relitigate his minimum due process and jurisdictional claims in Alaska state
court. Therefore, we accord full faith and credit to the Minto Tribal Court’s judgment
terminating Parks’s parental rights, and we reverse, remanding to the superior court to
order dismissal of Parks’s state court action.
26
(...continued)
therefore look to the federal Full Faith and Credit Clause and the implementing federal
statute, 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.” (citations omitted)).
27
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856
(1985) (“Our cases have often recognized that Congress is committed to a policy of
supporting tribal self-government and self-determination. That policy favors a rule that
will provide the forum whose jurisdiction is being challenged the first opportunity to
evaluate the factual and legal bases for the challenge.” (citations omitted)).
28
Id. at 856 n.21; Strate v. A-1 Contractors, 520 U.S. 438, 459 n.14 (1997).
-22- 6926
B. Recognition Of The Minto Tribal Court’s Judgment On The Custody
Of S.P. Implicates Interests At The Core Of Tribal Sovereignty And
Self-Determination.
In John I,29 which we recently relied on as the “foundational Alaska
authority regarding Alaska Native tribal jurisdiction over the welfare of Indian
children,”30 we made clear that when determining the question of tribal jurisdiction over
the welfare of tribal children, our twin interpretive lodestars are the tribe’s retained
inherent sovereign powers and congressional intent to limit or modify those retained
inherent powers.31 We “follow federal law by beginning from the premise that tribal
sovereignty with respect to issues of tribal self-governance exists unless divested,”32 and
“we will not lightly find that Congress intended to eliminate the sovereign powers of
Alaska tribes.”33
The welfare of tribal children is of vital and fundamental importance to
tribal self-governance, and ICWA was enacted in “recogni[tion] that a tribe has a strong
interest in ‘preserving and protecting the Indian family as the wellspring of its own
future.’ ”34 In its statutory findings in ICWA, Congress made explicit its “responsibility
for the protection and preservation of Indian tribes” and its intent to protect tribal self­
29
982 P.2d 738 (Alaska 1999).
30
State v. Native Village of Tanana, 249 P.3d 734, 750 (Alaska 2011)
(internal quotation marks omitted).
31
John I, 982 P.2d at 751.
32
Id. at 752.
33
Tanana, 249 P.3d at 750 (quoting John I, 982 P.2d at 752-53 (internal
quotation marks omitted)).
34
John I, 982 P.2d at 752 (quoting H.R. REP . N O . 95-1386, at 19 (1978),
reprinted in 1978 U.S.C.C.A.N. 7530, 7541).
-23- 6926
determination over Indian child custody proceedings: “[T]here is no resource that is
more vital to the continued existence and integrity of Indian tribes than their children
and . . . 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.”35
The tribal sovereignty to decide cases involving the best interests of tribal
children recognized in John I is inherent, non-territorial sovereignty.36 Native Village
of Tanana recognized that this inherent sovereignty included the right to initiate child
custody proceedings, including those defined in ICWA for which judgments must be
afforded full faith and credit by states.37 In John I and Native Village of Tanana, we
articulated our understanding that “ ‘Congress’s purpose in enacting ICWA reveals its
intent that Alaska Native villages retain their power to adjudicate child custody disputes’
and ‘ICWA’s very structure presumes both that the tribes . . . are capable of adjudicating
child custody matters . . . and that tribal justice systems are appropriate forums for
resolution of child custody disputes.’ ”38 “ICWA creates limitations on states’
jurisdiction over ICWA-defined child custody proceedings”39 through the jurisdictional
provisions which lie “[a]t the heart of the ICWA.”40 Section 1911 defines “Indian tribe
jurisdiction over Indian child custody proceedings,” including exclusive tribal
jurisdiction, transfer jurisdiction, and the right of the child’s tribe to intervene in state
35
25 U.S.C. § 1901 (2012).
36
John I, 982 P.2d at 748-49.
37
Tanana, 249 P.3d at 751.
38
Id. at 750 (quoting John I, 982 P.2d at 753-54) (omissions in original).
39
Id.
40
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989).
-24- 6926
court proceedings.41 But Congress foresaw that § 1911’s limitations on states’
jurisdiction might prove to be hollow if states, which had “often failed to recognize the
essential tribal relations of Indian people and the cultural and social standards prevailing
in Indian communities and families,”42 were free to disregard tribal court judgments in
child custody proceedings. Congress therefore included § 1911(d), which requires that
states give full faith and credit to tribal court child custody judgments to the same extent
as states give full faith and credit to the judgments of sister states,43 as prescribed by the
U.S. Constitution 44 and federal law.45 This full faith and credit mandate provides a
statutory guarantee that a tribe’s vital sovereign interests in the welfare of its children
will be respected by state courts.46
41
25 U.S.C. § 1911(a)-(c).
42
25 U.S.C. § 1901(5).
43
25 U.S.C. § 1911(d).
44
U.S. CONST . art. IV, § 1.
45
28 U.S.C. § 1738 (2012) (“[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 of the U.S. Constitution. Magnolia Petroleum Co. v. Hunt, 320
U.S. 430, 437-38 (1943); see also Starr v. George, 175 P.3d 50, 57 (Alaska 2008)
(indicating that we look to federal law to interpret ICWA’s full faith and credit clause).
46
See State v. Native Village of Tanana, 249 P.3d 734, 751 (Alaska 2011)
(“Necessarily, federally recognized Alaska Native tribes are entitled to all of the rights
and privileges of Indian tribes under ICWA, including procedural safeguards imposed
on states and § 1911(d) full faith and credit with respect to ICWA-defined child custody
orders to the same extent as other states and foreign orders.” (citation omitted)).
-25- 6926
In light of this conclusion, as well as the well-established canon that
“[c]ourts must resolve ambiguities in statutes affecting the rights of Native Americans
in favor of Native Americans,”47 we turn to ICWA’s full faith and credit clause and its
application to the Minto Tribal Court’s judgment terminating Parks’s parental rights.
C. ICWA’s Full Faith And Credit Clause Mandates That We Give The
Same Respect To Tribal Court Judgments In Child Custody
Proceedings That We Give To Judgments From A Sister State.
ICWA § 1911(d) requires that state courts give full faith and credit to the
judgments of tribal courts in Indian child custody proceedings to the same extent that
they give full faith and credit to the judgments of other states.48 Therefore, we first
ascertain whether ICWA § 1911(d) applies to the judgment of the Minto Tribal Court
terminating Parks’s parental rights before turning to the requirements of full faith and
credit.
47
John I, 982 P.2d 738, 752 (Alaska 1999); see also South Dakota v. Yankton
Sioux Tribe, 522 U.S. 329. 348 (1998) (recognizing “the standard canon of Indian law”
that “federal action which might arguably abridge [powers of tribal self-government] is
construed narrowly in favor of retaining Indian rights” (internal quotation marks
omitted)); Bryan v. Itasca Cnty., 426 U.S. 373, 392 (1976) (“[W]e must be guided by
that eminently sound and vital canon . . . that statutes passed for the benefit of dependent
Indian tribes are to be liberally construed, doubtful expressions being resolved in favor
of the Indians.” (ellipsis, citation, and internal quotation marks omitted)).
48
25 U.S.C. § 1911(d).
-26- 6926
1. The Minto Tribal Court’s proceedings satisfy ICWA’s definition
of child custody proceedings and therefore ICWA’s full faith
and credit mandate applies to its judgments.
It is undisputed that S.P. is an Indian child for ICWA purposes.49 S.P. was
eligible for membership in the Native Village of Minto under its tribal law, and she was
formally enrolled in November 2008 after Stearman submitted a tribal enrollment
application on her behalf.50 It is also undisputed that the Minto Tribal Court’s custody
and termination proceedings satisfied ICWA’s definition of Indian child custody
proceedings.51 Therefore, ICWA § 1911(d)’s full faith and credit mandate applies to the
Minto Tribal Court’s order which terminated the parental rights of Parks and Stearman.
At oral argument before us, the State argued that tribal court judgments are
entitled to a different, perhaps diluted, form of full faith and credit than sister state
judgments because “tribes are differently situated than states.” When asked whether its
position was that “the full faith and credit that we give to tribal court judgments is a
different type of full faith and credit tha[n] we give to our sister sovereign states,” the
State responded affirmatively, asserting that “[i]n a way it is because of the fact that
49
See 25 U.S.C. § 1903(4), defining “Indian child” as “any unmarried person
who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible
for membership in an Indian tribe and is the biological child of a member of an Indian
tribe.”
50
ICWA § 1903(5) also provides for determining an “Indian child’s tribe”
when an Indian child may be eligible for membership in more than one tribe. ICWA
gives tribal jurisdiction and intervention rights to “the Indian tribe with which the Indian
child has the more significant contacts.” 25 U.S.C. § 1903(5). While S.P. may have also
been eligible for membership in Stevens Village based on Parks’s membership, the
parties do not dispute Minto Village’s status as S.P.’s tribe for purposes of ICWA.
51
See 25 U.S.C. § 1903(1), defining “child custody proceeding” to include
foster care placement, termination of parental rights, preadoptive placement, and
adoptive placement.
-27- 6926
states have the obligation to adhere to the minimum standards of the U.S. Constitution.
Tribes have no such obligation to do that.” We reject this argument.
The State’s argument for a different type of full faith and credit for tribal
judgments in ICWA-defined child custody proceedings is clearly foreclosed by the
statutory language of § 1911(d), which requires full faith and credit “to the same extent”
as that given to any other entity including other states.52 Neither the State nor Parks
contests that Congress’s grant of full faith and credit to tribal court judgments under
ICWA § 1911(d) is a permissible exercise of Congress’s plenary powers over Indian
affairs. Such a challenge to the statute would have failed in any event given the United
States Supreme Court’s recognition that “the Constitution grants Congress broad general
powers to legislate in respect to Indian tribes, powers that [the United States Supreme
Court] ha[s] consistently described as ‘plenary and exclusive,’ ”53 including the
“authori[ty] . . . to enact legislation that both restricts and . . . relaxes . . . restrictions on
tribal sovereign authority.”54
The State’s argument also fails to afford tribal courts the respect to which
they are entitled as the judicial institutions of sovereign entities. We have previously
52
25 U.S.C. § 1911(d) (emphasis added); see also State v. Native Village of
Tanana, 249 P.3d 734, 751 (Alaska 2011) (“Necessarily, federally recognized Alaska
Native tribes are entitled to all of the rights and privileges of Indian tribes under ICWA,
including . . . § 1911(d) full faith and credit with respect to ICWA-defined child custody
orders to the same extent as other states’ and foreign orders.” (citation omitted)).
53
United States v. Lara, 541 U.S. 193, 200 (2004) (citation omitted).
54
Id. at 202.
-28- 6926
emphasized respect for tribal courts,55 and this respect must inform our analysis,
especially when full faith and credit is mandated by Congress.
2. We require exhaustion of appellate remedies before allowing
collateral attack on sister state judgments. Tribal court
judgments in ICWA-defined child custody proceedings are
entitled to the same respect.
We will deny full faith and credit to the final judgment of a sister state only
in limited circumstances, including situations where (1) the issuing court lacked personal
or subject matter jurisdiction when it entered its judgment; or (2) the issuing court failed
to render its judgment in accordance with minimum due process.56 A sister state’s
judgment is presumed to be entitled to full faith and credit, and the burden of proof is
properly on the party challenging the validity of the judgment.57 The same presumption
and burden apply when a party challenges a tribal court judgment that is entitled to full
faith and credit. “[I]t is presumed the decisions of tribal courts are sound unless the
challenging party can show that the foreign judgment was constitutionally infirm.”58
55
See, e.g., John I, 982 P.2d 738, 762-63 (Alaska 1999) (holding that “as a
general rule, our courts should respect tribal court decisions under the comity doctrine,”
which we defined in terms of “mutual respect”).
56
See Starr v. George, 175 P.3d 50, 55 (Alaska 2008).
57
See John II, 30 P.3d 68, 72 (Alaska 2001) (noting that a “presumption
against judicial error is common between cooperating courts of concurrent jurisdiction”
and that “courts have placed the burden of proof upon the party challenging another
state’s judgment”).
58
Starr, 175 P.3d at 56 (internal quotation marks and citation omitted). This
presumption accords with our precedent on granting comity to tribal court judgments in
the non-ICWA child custody context. John II, 30 P.3d at 72 (“[I]t should be presumed
that tribal courts’ decisions are sound and deserving of comity unless the challenging
party can show otherwise.”).
-29- 6926
As a measure of respect for our sister states and their courts, we have
refused to allow a party to collaterally attack a sister state’s judgment when the party
failed to appeal in that state’s courts. In Wall v. Stinson, we “decline[d] to reexamine”59
challenges to a sister state’s judgment, including challenges to the issuing court’s
jurisdiction, when the party “failed to prosecute an appeal.”60 We concluded that “[e]ven
if the judgment is based on legal error, it is entitled to full faith and credit. The remedy
for legal error is appeal, not collateral attack.”61
We have recognized that tribal court judgments in ICWA-defined child
custody proceedings are entitled to full faith and credit to the same extent as a judgment
of a sister state.62 Therefore, when a party challenges the validity of a tribal judgment
in an ICWA-defined child custody proceeding, we must consider whether tribal appellate
remedies were available, and if so, whether the party challenging the judgment “failed
to prosecute an appeal.”63
D. The Exhaustion Of Tribal Remedies Doctrine Is Persuasive In This
Context And We Adopt The Federal Doctrine.
Given our precedent that the failure to exhaust appellate remedies precludes
collateral attack,64 and the necessity of interpreting ICWA in light of relevant federal
Indian law, we proceed to examine the federal exhaustion of tribal court remedies
59
983 P.2d 736, 743 (Alaska 1999).
60
Id. at 741.
61
Id.
62
Starr, 175 P.3d at 55 (“ICWA requires the state to give the same credit to
tribal court judgments it gives to the judgments of the courts of sister states.”).
63
Wall, 983 P.2d at 741.
64
Id.
-30- 6926
doctrine. The policies underlying that doctrine are persuasive in this context, and we
adopt the federal doctrine.
In Starr v. George, we directly addressed ICWA’s full faith and credit
mandate for tribal court judgments, and we concluded that “[f]ull faith and credit . . .
requires that the issuing court afford the parties due process and render its judgment in
accordance with federal and state constitutional standards.”65 We relied on federal law
for “guidance in determining whether the tribal court resolutions meet the requirements
entitling them to full faith and credit under ICWA.”66 Similarly, in answering the
question whether Parks was required to exhaust available tribal appellate remedies, we
look to federal law for guidance and conclude that the federal exhaustion of tribal
remedies doctrine should apply in this case.
This case involves an issue of federal Indian law, namely the Minto Tribal
Court’s power and jurisdiction to determine custody issues affecting S.P., including
termination of the parental rights of her non-tribal member father and her tribal member
mother. The Ninth Circuit faced similar fact patterns involving the custody of a tribal
member child and the parental rights of a non-tribal member parent in Boozer v. Wilder67
and Atwood v. Fort Peck Tribal Court Assiniboine,68 dismissing both cases for failure to
exhaust available tribal court remedies. The Boozer court looked to United States
Supreme Court precedent and concluded that “[b]ecause federal law defines the outer
boundaries of an Indian tribe’s power over non-Indians, the question whether an Indian
tribe retains the power to compel a non-Indian . . . to submit to the civil jurisdiction of
65
175 P.3d at 55.
66
Id. at 57.
67
381 F.3d 931 (9th Cir. 2004).
68
513 F.3d 943 (9th Cir. 2008).
-31- 6926
a tribal court is one that must be answered by reference to federal law.”69 The Boozer
court further concluded that “[a] federal court must give the tribal court a full opportunity
to determine its own jurisdiction, which includes exhausting opportunities for appellate
review in tribal courts,” and proceeded to apply the exhaustion of tribal remedies
doctrine.70
The United States Supreme Court announced the exhaustion of tribal
remedies doctrine in National Farmers Union Insurance Companies v. Crow Tribe of
Indians,71 where the Court concluded that the congressional “policy of supporting tribal
self-government and self-determination . . . favors a rule that will provide the forum
whose jurisdiction is being challenged the first opportunity to evaluate the factual and
legal bases for the challenge.”72 The United States Supreme Court has also recognized
that “proper respect for tribal legal institutions requires that they be given a ‘full
opportunity’ to consider the issues before them and to rectify any errors.”73 “Proper
respect” for tribal courts requires affording them a “full opportunity” to conduct tribal
appellate review: “The federal policy of promoting tribal self-government encompasses
69
381 F.3d at 934 (omission in original) (quoting Nat’l Farmers Union Ins.
Cos. v. Crow Tribe of Indians, 471 U.S. 845, 851-52 (1985)) (internal quotation marks
omitted); see also Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S.
316, 324 (2008) (“We begin by noting that whether a tribal court has adjudicative
authority over nonmembers is a federal question.”).
70
381 F.3d at 935 (citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 16-17
(1987)).
71
471 U.S. 845.
72
Id. at 856.
73
Iowa Mut. Ins., 480 U.S. at 16 (quoting Nat’l Farmers Union, 471 U.S. at
857).
-32- 6926
the development of the entire tribal court system, including appellate courts. At a
minimum, exhaustion of tribal remedies means that tribal appellate courts must have the
opportunity to review the determinations of the lower tribal courts.”74
The United States Supreme Court has explained that the exhaustion of tribal
remedies doctrine is “ ‘prudential,’ [rather than] jurisdictional,”75 so federal courts are
instructed to examine relevant federal policy and determine whether “[r]espect for tribal
self-government ma[kes] it appropriate ‘to give the tribal court a “full opportunity to
determine its own jurisdiction.” ’ ”76 When Congress passed ICWA, it included statutory
findings making clear the paramount importance of the welfare of tribal children to the
continued viability of tribal self-government and self-determination: “[T]he Congress
finds . . . there is no resource that is more vital to the continued existence and integrity
of Indian tribes than their children . . . .”77 As discussed above, there can be no doubt
then that the “policy of supporting tribal self-government and self-determination”78
applies to ICWA-defined tribal child custody proceedings and supports a conclusion that
tribal remedies must be exhausted before state jurisdiction may be exercised.
In addition to the doctrine’s applicability in federal courts, at least one state
supreme court has held that the doctrine is binding on its state’s courts in situations of
74
Id. at 16-17.
75
Strate v. A-1 Contractors, 520 U.S. 438, 451(1997) (quoting Iowa Mut.
Ins., 480 U.S. at 20 n.14).
76
Id. (quoting Iowa Mut. Ins., 480 U.S. at 16).
77
25 U.S.C. § 1901(3) (2012).
78
Nat’l Farmers Union, 471 U.S. at 856.
-33- 6926
concurrent tribal and state jurisdiction.79 As the Connecticut Supreme Court persuasively
reasoned,
[t]he Supreme Court established the doctrine mainly in order
to avoid disruption of that “federal policy supporting tribal
self-government . . . [through] direct competition [by the
federal courts] with the tribal courts . . . .” In our view, direct
competition from state courts is equally likely to disrupt that
federal policy. Because we owe no less deference to federal,
statutory based policy than do the federal courts, we should
be no more willing than they to risk disruption of this federal
policy by exercising jurisdiction over cases to which the
doctrine would apply. Indeed, the well recognized “ ‘plenary
and exclusive [federal] power over Indian affairs’ ” which
generally precludes independent exercise of state authority
vis-a-vis tribal affairs, deepens our duty of deference to this
particular policy. We conclude, therefore, that the doctrine
is binding on the courts of this state.[80]
We have also considered an exhaustion requirement in the context of
extending comity to tribal court child custody decisions not covered by ICWA. In John
II, we gave notice that “a litigant’s failure to exhaust tribal remedies is a significant
factor to be considered when that litigant challenges comity.” 81 We pointed out that the
tribal court “had no chance to pursue internal remedies” to rectify the alleged due process
violation, which in that case was the loss of the court record.82 We declined to adopt a
strict exhaustion requirement in the comity analysis of a non-ICWA child custody case,
79
Drumm v. Brown, 716 A.2d 50, 63-64 (Conn. 1998).
80
Id. (alterations in original) (first omission in original) (citations omitted).
81
30 P.3d 68, 74 n.31 (Alaska 2001).
82
Id. at 74.
-34- 6926
but we warned that the failure to exhaust tribal appellate procedures could “seriously
undermine” a party’s claim to have been denied minimum due process.83
Here we are not examining the analysis of comity but rather that of full faith
and credit required by ICWA. In Starr v. George, we noted that full faith and credit
requires even greater deference to tribal court judgments than does comity.84 Under the
heightened standard of full faith and credit, a litigant’s failure to appeal a tribal court’s
child custody decision must even more “seriously undermine any claims that the tribal
court denied him due process,”85 thus supporting adoption of the federal exhaustion of
tribal remedies doctrine.
The policies underlying the exhaustion of remedies doctrine are persuasive
in the context of ICWA-defined child custody proceedings and are consistent with our
precedent stating that the failure to exhaust appellate remedies precludes review of sister
state judgments. We therefore adopt the federal exhaustion of remedies doctrine in this
context and turn next to the question whether Parks satisfied any of the exceptions to that
doctrine.
83
Id. at 74 n.31.
84
175 P.3d 50, 53 (Alaska 2008) (noting that comity is “a principle under
which it is easier to attack the parallel judgments of foreign (in this case, tribal) courts”
than it is under the principle of full faith and credit). We also cited 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 Q UINNIPIAC L.
REV . 115, 125-26 (1998), for the propositions 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 “[c]omity is less restrictive a doctrine than full faith
and credit.” Starr, 175 P.3d at 53 n.10.
85
John II, 30 P.3d at 74 n.31.
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E. Parks Has Not Satisfied Any Of The Exceptions To The Exhaustion Of
Tribal Remedies Doctrine.
Federal law recognizes limited exceptions to the exhaustion of tribal
remedies doctrine. Exhaustion is not required “where an assertion of tribal jurisdiction
is motivated by a desire to harass or is conducted in bad faith, or where the action is
patently violative of express jurisdictional prohibitions, or where exhaustion would be
futile because of the lack of an adequate opportunity to challenge the court’s
jurisdiction.”86 Nor is exhaustion required if it is clear that the tribal court lacks
jurisdiction over the dispute so that “the otherwise applicable exhaustion requirement
must give way, for it would serve no purpose other than delay.”87
The State and Parks do not argue that the assertion of the Minto Tribal
Court’s jurisdiction “[was] motivated by a desire to harass or [was] conducted in bad
faith” or that “the action [was] patently violative of express jurisdictional prohibitions.”88
Instead, the State asserts a futility argument, contending that “appellate review of Parks’s
jurisdictional objections would not have been meaningful.” The State also argues that
if the exhaustion doctrine applies to Parks, then his case falls under the exception where
it is “plain” that the tribal court lacked jurisdiction so that “the otherwise applicable
exhaustion requirement must give way, for it would serve no purpose other than delay.”89
Parks agrees with these arguments. We conclude that Parks has not satisfied any of the
86
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856
n.21 (1985) (internal quotation marks and citation omitted).
87
Strate v. A-1 Contractors, 520 U.S. 438, 459 n.14 (1997) (internal citation
omitted); see also Nevada v. Hicks, 533 U.S. 353, 369 (2001); Boozer v. Wilder, 381
F.3d 931, 935 (9th Cir. 2004).
88
Nat’l Farmers Union, 471 U.S. at 856 n.21.
89
Strate, 520 U.S. at 459 n.14 (citation omitted).
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exceptions to the exhaustion requirement and that his failure to exhaust available tribal
appellate remedies is thus fatal to his state court action.
1. Parks chose not to exhaust available tribal appellate remedies.
Shortly after the termination of his parental rights, Parks was provided with
detailed information on his right to seek review by the Minto Court of Appeals. Parks
received instructions on how to file an appeal, including the instruction to file a “brief
statement of why the Appellant believes that the Order deserves a hearing by the Minto
Court of Appeals.”90 (Emphasis omitted.) There were no page limitations or substantive
restrictions placed on the appellant’s statement of appeal, and there were no restrictions
on the participation of an attorney in preparing the statement of appeal. Yet Parks failed
to file an appeal with the Minto Court of Appeals.
2. Parks does not satisfy the futility exception to the exhaustion
doctrine.
In National Farmers Union, the United States Supreme Court articulated
an exception to the exhaustion requirement “where exhaustion would be futile because
of the lack of an adequate opportunity to challenge the [tribal] court’s jurisdiction.”91
The superior court, in its first order denying the motion to dismiss,
expressed concern that the appellate process of the Minto Court of Appeals might not
present an adequate opportunity to challenge the tribal court’s jurisdiction, focusing on
that court’s use of the term “brief statement” in its appellate procedures:
The Minto appeal procedures permit only a “brief statement”
of the reasons for the appeal . . . . Given the limited statement
permitted under the appeal procedures, the rule that lawyers
90
The Minto Judicial Code was revised and the 2010 version stated that “[t]he
Notice of Appeal shall contain a statement of why the Appellant believes that the case
should come before the Minto Court of Appeals.”
91
471 U.S. at 856 n.21.
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may not speak before the Minto tribal courts, and the reason
given at oral argument for the rule — that Minto Tribal Court
judges are not law-trained and therefore do not permit
lawyers to speak — requiring exhaustion of tribal remedies
would not cure the due process denial that occurred here —
the refusal to permit a jurisdictional objection to be raised and
heard in a meaningful fashion. . . . [T]herefore, exhaustion of
tribal remedies is not required under the circumstances of this
case.
But the superior court’s concern was misplaced for two reasons. First, there
were no specific limitations on the length of submissions to the Minto Court of Appeals
or restrictions on the ability of Parks’s attorney to prepare submissions and thereby
present his jurisdictional objections. We will not presume that the Minto Court of
Appeals’ procedures precluded meaningful written briefing based on its use of the phrase
“brief statement.”92 Second, the futility exception to the federal exhaustion doctrine does
not entail full review of tribal court procedures, as this would vitiate the deference that
the doctrine dictates. Instead, federal courts generally apply this exception only when
the complete lack of a functioning tribal court renders tribal remedies unavailable and
therefore futile.93 The record is clear that a tribal appellate remedy was available and that
92
For comparison, Alaska Rule of Appellate Procedure 204(e) directs the
appellant to “serve and file a concise statement of the points on which appellant intends
to rely in the appeal.” (Emphasis added.) This rule does not violate the requirements of
minimum due process or make appeal meaningless.
93
See, e.g., Comstock Oil & Gas Inc. v. Alabama & Coushatta Indian Tribes
of Texas, 261 F.3d 567, 572 (5th Cir. 2001) (“Because no tribal court properly existed,
exhaustion was imprudent in the present dispute.”); Johnson v. Gila River Indian Cmty.,
174 F.3d 1032, 1036 (9th Cir. 1999) (“Delay alone is not ordinarily sufficient to show
that pursuing tribal remedies is futile. However, if a functioning appellate court does not
exist, exhaustion is per se futile.”); Krempel v. Prairie Island Indian Cmty., 125 F.3d
621, 622 (8th Cir. 1997) (“[I]f there is no functioning tribal court, exhaustion would be
(continued...)
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Parks was aware of this fact before he brought his collateral attack on the Minto Tribal
Court’s judgment in the superior court.
The State couches its futility argument in terms of whether tribal appellate
review would have been “meaningful,” arguing that “if required to exhaust tribal
remedies, Parks would still be hindered by the restriction on oral advocacy by attorneys”
even though his attorney would have been permitted to submit written briefing on his
jurisdictional objections. In considering the State’s futility argument, we rely on our
discussion of comity in John I,94 but we also recognize that full faith and credit requires
even greater deference to tribal court judgments than does comity.95 In our discussion
of the due process requirements for granting comity, we emphasized that proceedings in
tribal courts must not be evaluated by unreflective comparison with state and federal
judicial procedures.96 The critical question is “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.”97 We have
also cautioned state court judges against importing their own views on proper procedure:
“[T]his due process analysis in no way requires tribes to use procedures identical to ours
in their courts. The comity analysis is not an invitation for our courts to deny recognition
93
(...continued)
futile and therefore would not be required.”); see also COHEN ’S H ANDBOOK OF FEDERAL
INDIAN LAW § 7.04[3], at 632 (Nell Jessup Newton ed., 2012) [hereinafter C OHEN ’S
H ANDBOOK ] (“The ‘futility’ exception applies generally only when the tribe does not
have a functioning court system.”).
94
982 P.2d 738, 763-64 (Alaska 1999).
95
Starr v. George, 175 P.3d 50, 53 (Alaska 2008).
96
John I, 982 P.2d at 763.
97
Id.
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to tribal judgments based on paternalistic notions of proper procedure.”98 We have
clarified that “in deciding whether a party was denied due process, superior courts should
strive to respect the cultural differences that influence tribal jurisprudence, as well as to
recognize the practical limits experienced by smaller court systems.”99 This accords with
our generally applicable precedent that “[d]ue process is flexible, and the concept should
be applied in a manner which is appropriate in the terms of the nature of the
proceeding.”100
We have also expressly warned that when evaluating tribal court judgments,
state court judges “should not deny recognition to tribal judgments simply because they
disagree with the outcome reached by the tribal judge or because they conclude that they
could better resolve the dispute at issue.”101 In John I, we admonished that
“suggesting—as the superior court did in this case—that state jurisdiction was proper
because ‘significant expertise will be required to resolve this difficult dispute,’ has no
place in a comity analysis.”102 Nor does it have any place in a full faith and credit
analysis or in establishing the futility exception to the exhaustion requirement. The
United States Supreme Court has similarly “rejected . . . attacks on tribal court
jurisdiction” based on allegations of “local bias and incompetence” and has made clear
that “[t]he alleged incompetence of tribal courts is not among the exceptions to the
98
Id.
99
Id.
100
Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979) (citation and internal
quotation marks omitted).
101
John I, 982 P.2d at 763 (citing Hilton v. Guyot, 159 U.S. 113, 202-03
(1895)).
102
Id. at 763-64.
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exhaustion requirement established in National Farmers Union.”103 We therefore reject
any hint of inadequacy of review that might be inferred from the State’s characterization
of the Minto Tribal Court as a “ ‘relational’ tribal court that applies unwritten, cultural
law” and “is unfamiliar with core Western jurisdictional concepts.” As the First Circuit
forcefully stated:
The unsupported averment that non-Indians cannot receive a
fair hearing in a tribal court flies in the teeth of both
congressional policy and the Supreme Court precedents
establishing the tribal exhaustion doctrine. The requirements
for th[e futility] exception are rigorous; . . . a party cannot
skirt the tribal exhaustion doctrine simply by invoking
unfounded stereotypes.[104]
The State focuses on the necessity of attorney oral argument for Parks to
meaningfully present his jurisdictional objections to the Minto Tribal Court or the Minto
Court of Appeals. But if the “jurisdictional question here is a complex question
governed by federal case law,” as the State asserts, written argument could be preferable
to oral presentation of complex federal precedent. And the State presents no authority
for its conclusion that oral argument is necessary to make an appeal meaningful; instead
the State conflates the familiar with the necessary, measuring the role of Parks’s counsel
in the tribal appellate court against what would be typical in an federal or state appellate
court. Furthermore, many state appellate courts do not grant oral argument as a matter
103
Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18-19 (1987).
104
Ninigret Dev. Corp. v. Narragansett Indian Wetuomuck Hous. Auth., 207
F.3d 21, 34 (1st Cir. 2000).
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of right,105 and we would not allow the State to undermine the decisions of these courts
on that basis.
The State and Parks fail to establish that appeal to the Minto Court of
Appeals would not have provided “an adequate opportunity to challenge the [tribal]
court’s jurisdiction.”106 Because a tribal appellate remedy was available to Parks, we
conclude that he fails to satisfy the futility exception to the exhaustion doctrine.
3. Parks fails to satisfy the exception under which a party need not
exhaust tribal court remedies when it is plain that the tribal
court lacked jurisdiction.
In a footnote in Strate v. A-1 Contractors, the United States Supreme Court
recognized a fourth exception to the exhaustion of tribal remedies doctrine when “it is
plain that . . . tribal courts lack adjudicatory authority.”107 In such cases, “the otherwise
applicable exhaustion requirement must give way, for it would serve no purpose other
than delay.”108 The Ninth Circuit “ha[s] equated that inquiry with whether jurisdiction
105
See, e.g., PA . R. A PP . P. 3813 (“There is no right to oral argument before
an appellate court. The Supreme Court will consider any request for oral argument set
forth in a petition for review and, if granted, will notify interested parties of the time,
place and manner of oral argument.”); Brown v. Glover, 16 P.3d 540, 544 (Utah 2000)
(“Clearly, while an appeal as of right exists, there is no specific right to oral argument
under Utah law. In fact, rule 29 specifically states reasons for which an appellate court
need not grant oral argument.”); see also FED . R. A PP . P. 34(a)(2) (providing for the
disposition of federal appeals without oral argument).
106
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856
n.21 (1985).
107
520 U.S. 438, 459 n.14 (1997).
108
Id. (citation omitted).
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is ‘colorable’ or ‘plausible.’ ”109 Under this exception, excusal of exhaustion of tribal
remedies is justified only when tribal adjudicatory authority is so plainly foreclosed by
law that the tribal court has no colorable or plausible claim to jurisdiction.110 A leading
treatise similarly concludes that “[w]here the Supreme Court has not yet clearly
foreclosed tribal jurisdiction, . . . the policies behind the exhaustion requirement itself
dictate that tribal courts be permitted to first review the jurisdictional question.” 111 As
we explain below, tribal courts should be permitted to review fully the type of
jurisdictional objections raised by Parks because tribal jurisdiction in this case is, at the
very least, colorable and plausible. This approach is consistent with Congress’s
structuring ICWA to validate the importance of tribal court jurisdiction in this context.
a. The Minto Tribal Court had a colorable and plausible
claim to jurisdiction over this case.
In applying Strate’s jurisdictional exception, we conclude that the Minto
Tribal Court had, at the very least, a colorable and plausible claim to jurisdiction to
terminate Parks’s and Stearman’s parental rights to S.P. The Ninth Circuit has applied
the colorable or plausible tribal jurisdiction review standard to cases with facts quite
similar to those in this case and has concluded that tribal jurisdiction over a non-tribal
109
Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th Cir.
2008).
110
Id.; see also Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842,
848 (9th Cir. 2009) (“If ‘jurisdiction is “colorable” or “plausible,” ’ then the exception
does not apply and exhaustion of tribal court remedies is required.” (citation omitted));
Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 920 (9th Cir. 2008) (“Principles of
comity require federal courts to dismiss or to abstain from deciding claims over which
tribal court jurisdiction is ‘colorable,’ provided that there is no evidence of bad faith or
harassment.” (citation omitted)).
111
COHEN ’S H ANDBOOK , supra note 93, § 7.04[3], at 633.
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member was not plainly lacking so that exhaustion of tribal remedies was required.112
For example in Atwood v. Fort Peck Tribal Court Assiniboine, the Ninth Circuit held that
the non-Indian father was required to exhaust tribal remedies in a child custody dispute
before he could challenge tribal jurisdiction in federal court.113 The court concluded that
“it is not ‘plain’ that tribal court jurisdiction is lacking . . . [,] equat[ing] that inquiry with
whether jurisdiction is ‘colorable’ or ‘plausible.’ . . . [T]he suit primarily concerns [the
child], who is a member of the tribe. Although the rights of non-member Plaintiff are
affected, it is not clear that that fact alone would strip the Tribal Court of jurisdiction.”114
In John I, our foundational decision on tribal jurisdiction over child
custody,115 we considered the adjudication of a custody dispute between two parents
from different Alaska Native Villages.116 In that case, the mother consented to the
jurisdiction of the father’s tribal court, and we were called upon to decide whether the
tribal court had concurrent jurisdiction with the state court over the custody dispute.117
Although the custody dispute fell outside of ICWA, “we conclude[d] that ICWA
112
See, e.g., Atwood, 513 F.3d at 948; Boozer v. Wilder, 381 F.3d 931, 935-37
(9th Cir. 2004).
113
513 F.3d at 948.
114
Id. (emphasis in original); see also Boozer, 381 F.3d at 935-37 (upholding
the dismissal of a non-Indian father’s suit challenging tribal jurisdiction over a custody
dispute concerning his daughter, who was a tribal member, for failure to exhaust tribal
remedies).
115
State v. Native Village of Tanana, 249 P.3d 734, 750 (Alaska 2011) (“John
v. Baker is foundational Alaska authority regarding Alaska Native tribal jurisdiction over
the welfare of Indian children . . . .”).
116
John I, 982 P.2d 738, 743 (Alaska 1999) (“Ms. John is a member of
Mentasta Village and Mr. Baker is a member of Northway Village.”).
117
Id.
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provides the most appropriate test for deciding when a tribal court has subject matter
jurisdiction over a particular custody dispute. Under ICWA, the relevant factor is the
child’s tribe.”118 We explained:
Although Ms. John is not a member of Northway Village, she
argues that the children themselves are eligible for tribal
membership. This is a critical fact that must be determined
by the superior court on remand . . . . A tribe’s inherent
sovereignty to adjudicate internal domestic custody matters
depends on the membership or eligibility for membership of
the child. Such a focus on the tribal affiliation of the children
is consistent with federal statutes such as ICWA, which
focuses on the child’s tribal membership as a determining
factor in allotting jurisdiction. Because the tribe only has
subject matter jurisdiction over the internal disputes of tribal
members, it has the authority to determine custody only of
children who are members or eligible for membership.[119]
We concluded that “an action for determination of custody of the children of a member
of Northway Village . . . falls squarely within Northway’s sovereign power to regulate
the internal affairs of its members.”120
In John I, there was some question whether the children were in fact tribal
members or eligible for tribal membership under tribal law.121 The case was remanded
to the superior court to determine the children’s membership status under tribal law 122
in accordance with the United States Supreme Court’s precedent in Santa Clara Pueblo
118
Id. at 764 (emphasis in original).
119
Id. at 759 (citation omitted).
120
Id.
121
Id. at 764.
122
Id.
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v. Martinez that “[a] tribe’s right to define its own membership for tribal purposes has
long been recognized as central to its existence as an independent political
community.”123 On remand, the superior court determined that the children were eligible
for membership, and we subsequently upheld the tribal court’s jurisdiction on the basis
of the children’s eligibility for membership.124
Our conclusion that the Minto Tribal Court’s claim of jurisdiction over the
custody of S.P. is plausible is consistent with case authority and the views of scholars
and commentators on tribal jurisdiction in ICWA-defined child custody proceedings.
“The Act accommodates Indian children with mixed parentage from intertribal
marriages,” and tribal jurisdiction and intervention rights depend solely on the
membership status of the child.125 In Kaltag Tribal Council v. Jackson,126 where “[t]he
123
Id. at 764 n.187 (quoting Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72
n.32 (1978)) (internal quotation marks omitted).
124
John II, 30 P.3d 68, 73 (Alaska 2001) (“On remand, we instructed the
superior court to determine the children’s membership status by applying tribal law. The
superior court did so and concluded that the children were eligible for membership. . . .
Because the superior court correctly determined that Northway had subject matter
jurisdiction over this case, it properly concluded that there exists no jurisdiction-based
reason to deny comity to Northway’s order.” (citation omitted)).
125
C OHEN ’S H ANDBOOK , supra note 93, § 11.02[3], at 838 (“The quality or
nature of the member-parent’s or child’s relationship with the tribe should not be
germane [in the ICWA context] once it is established that the parent or child is a member
of a federally recognized tribe or that the child is eligible to be a member.”).
126
No. 3:06-cv-211 TMB, 2008 WL 9434481 (D. Alaska Feb. 22, 2008), aff’d,
344 F. App’x 324 (9th Cir. 2009).
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issue . . . [was] whether the tribal court had concurrent jurisdiction with the State to
initiate a child protection matter,”127 the federal district court explained:
Defendants note that the Alaska Supreme Court has held that
a “tribe only has subject matter jurisdiction over the internal
disputes of tribal members.” [John I, 982 P.2d at 759.]
Similarly, in Venetie, the Ninth Circuit noted in a footnote
that “[a] tribe’s authority over its reservation or Indian
country is incidental to its authority over its members.”
[Native Village of Venetie I.R.A. Council v. State of Alaska,
944 F.2d 548, 559 n.2 (9th Cir. 1991) (citation omitted).]
However, it is the membership of the child that is controlling,
not the membership of the individual parents.[128]
As the Simmondses note, this was the position taken by the United States Solicitor
General in advocating the denial of certiorari by the United States Supreme Court in
Kaltag.129 Certiorari was denied, leaving intact the Ninth Circuit’s affirmance of the
district court’s conclusion that the tribal court in Kaltag had jurisdiction despite the
nonmember status of one of the parents.130
127
Id. at *3.
128
Id. at *6 (emphasis and alteration in original) (citations in footnotes
relocated to main text).
129
Hogan v. Kaltag Tribal Council, 131 S. Ct. 66 (2010). The Solicitor
General set out arguments very similar to those of the Simmondses. See Brief for the
United States as Amicus Curiae at *12, Hogan, 131 S. Ct. 66 (No. 09-960), 2010 WL
3391759 (“ICWA’s jurisdictional scheme appropriately focuses on the status of the child
at the heart of the custody proceeding, not the identities of other parties . . . . Neither
tribal jurisdiction under Section 1911(a) and (b), nor Section 1911(d)’s requirement to
extend full faith and credit to tribal proceedings is subject to an exception based on the
membership status of some other party.”).
130
Kaltag, 2008 WL 9434481, at *6.
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b. The State’s argument — that Montana and Strate create
a dispositive presumption against tribal jurisdiction so
that exhaustion was not required in this case — is
unavailing.
The State argues that “even if [Parks’s] case is subject to the federal . . .
exhaustion requirement, it falls under the exception that applies when ‘it is plain that no
federal grant provides for tribal governance of nonmembers’ conduct,’ such that
exhaustion ‘would serve no purpose other than delay.’ ” The State asserts that “federal
case law presumes that tribes lack jurisdiction over nonmembers, especially on non-
Indian fee land,” relying heavily on the State’s interpretation of Montana v. United
States131 and Strate v. A-1 Contractors132 to argue that “it is plain that the Minto Tribe
does not have jurisdiction over Parks.” The State argues that Montana and Strate read
in conjunction constitute a “presumptive lack of jurisdiction” so that the exhaustion
requirement does not apply. We disagree. The United States Supreme Court has
repeatedly and explicitly emphasized the context-bound nature of each of its rulings on
tribal court civil jurisdiction, looking to various indices of congressional and executive
action and intent in enlarging or diminishing retained inherent tribal sovereignty. We
decline to read into the Supreme Court’s precedent a presumption that applies
ecumenically across all contexts so that the Minto Tribal Court had no colorable or
plausible claim to jurisdiction over custody matters affecting S.P.
In Montana v. United States, the United States Supreme Court considered
whether a tribe’s regulatory authority included the “regulation of hunting and fishing by
131
450 U.S. 544 (1981).
132
520 U.S. 438 (1997).
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nonmembers of a Tribe on lands no longer owned by the Tribe.”133 The Court concluded
that while “Indian tribes retain their inherent power to determine tribal membership, to
regulate domestic relations among members, and to prescribe rules of inheritance for
members,” the regulation at issue was not authorized by “the general principles of
retained inherent sovereignty.”134 The Court articulated “the general proposition” that
unless there has been “express congressional delegation” the “inherent sovereign powers
of an Indian tribe do not extend to the activities of nonmembers of the tribe,” subject to
two exceptions.135
While the Montana Court stated its “general proposition” in categorical
terms, its actual conclusion depended on its examination of federal executive and
legislative action and intent regarding the regulation at issue.136 This sensitivity to the
federal government’s plenary authority over Indian affairs, including Congress’s power
to determine tribal authority over nonmembers, was emphasized by the Court in National
Farmers Union Insurance Companies v. Crow Tribe of Indians, where the Court held
that “the existence and extent of a tribal court’s [civil] jurisdiction will require a careful
examination of tribal sovereignty, the extent to which that sovereignty has been altered,
133
450 U.S. at 564.
134
Id. at 564-65.
135
Id. at 565. The first exception concerned a tribe’s regulation “through
taxation, licensing, or other means, the activities of nonmembers who enter consensual
relationships with the tribe or its members, through commercial dealing, contracts,
leases, or other arrangements.” Id. The second exception involved a tribe’s “retain[ed]
inherent power to exercise civil authority over the conduct of non-Indians on fee lands
within its reservation when that conduct threatens or has some direct effect on the
political integrity, the economic security, or the health or welfare of the tribe.” Id. at
566.
136
Id. at 557-63.
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divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch
policy as embodied in treaties and elsewhere, and administrative or judicial decisions.”137
In Strate, the Court extended the Montana framework governing tribal
regulatory authority to tribal civil adjudicatory authority referring to the Montana
decision as “pathmarking.”138 As in Montana, the Strate Court described its framework
on tribal civil adjudicatory authority over nonmembers in broad, categorical terms:
“[A]bsent a different congressional direction, Indian tribes lack civil authority over the
conduct of nonmembers on non-Indian land . . . subject to two exceptions . . . .”139 But
the Court took pains to clarify that Strate was not overruling National Farmers Union
on the basis of Montana.140 And the Court also reaffirmed that the Montana Court
“examined the treaties and legislation relied upon by the Tribe” and “[o]nly after and in
light of that examination did the Court address the Tribe’s assertion of ‘inherent
sovereignty.’ ”141
In Nevada v. Hicks, the Court considered tribal court jurisdiction over state
law enforcement officers who had executed a search warrant on tribal land.142 The Court
made clear that “[t]he principle of Indian law central to this aspect of the case is our
137
471 U.S. 845, 855-56 (1985) (citation omitted).
138
Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997).
139
Id. at 446.
140
Id. at 448 (“National Farmers and Iowa Mutual, we conclude, are not at
odds with, and do not displace, Montana.”).
141
Id. at 449-50.
142
533 U.S. 353, 355 (2001).
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holding in Strate”143 but also concluded that “[o]ur holding in this case is limited to the
question of tribal-court jurisdiction over state officers enforcing state law. We leave
open the question of tribal-court jurisdiction over nonmember defendants in general.”144
In her concurrence, Justice Ginsburg emphasized this point.145 She wrote separately
specifically to make clear that neither the holding in Hicks nor the holding in Strate
should be presumed to answer tribal civil jurisdictional issues beyond their specific facts:
“I write separately only to emphasize that Strate v. A-1 Contractors similarly deferred
larger issues. . . . The Court’s opinion, as I understand it, does not reach out definitively
to answer the jurisdictional questions left open in Strate.”146
In her concurrence in part, Justice O’Connor similarly clarified that she did
not interpret Montana or its extension to tribal adjudicatory authority in Strate to
establish “a broad per se rule prohibiting tribal jurisdiction over nonmembers.”147 Rather
than establishing a rigid framework, Montana “provides principles that guide our
determination of whether particular activities by nonmembers implicate [tribal] sovereign
interests to a degree that tribal civil jurisdiction is appropriate.”148 “Saying that tribal
jurisdiction must ‘accommodat[e]’ various sovereign interests does not mean that tribal
143
Id. at 357.
144
Id. at 358 n.2.
145
Id. at 386 (Ginsburg, J., concurring).
146
Id. (citation omitted).
147
Id. at 396 (O’Connor, J., concurring in part).
148
Id. at 392. -51- 6926
interests are to be nullified through a per se rule.”149 Justice O’Connor also noted that
“[w]e refused to foreclose entirely the civil jurisdiction of tribal courts over nonmembers
as we had foreclosed inherent criminal jurisdiction over nonmembers”150 and reiterated
the language from National Farmers Union quoted above.151
In sum, reading Montana, Strate, and Hicks in conjunction, it is clear
that Montana’s “general proposition” that tribal sovereign power “do[es] not extend to
the activities of nonmembers” absent “express congressional delegation”152 must still be
interpreted in light of relevant action by the political branches of the federal government.
Furthermore, Strate and Hicks explicitly limit their holdings on tribal jurisdiction to the
facts of each case.153 As Justice Souter, also concurring in Hicks, noted, “[t]ribal
149
Id. at 395 (alteration in original) (citation omitted).
150
Id. at 398-99.
151
Id. at 399 (quoting Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845, 855-56 (1985)) (“[T]he existence and extent of a tribal court’s jurisdiction
will require a careful examination of tribal sovereignty, the extent to which that
sovereignty has been altered, divested, or diminished, as well as a detailed study of
relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and
administrative or judicial decisions.”).
152
Montana v. United States, 450 U.S. 544, 564-65 (1981).
153
Similarly, the Court in Plains Commerce Bank v. Long Family Land &
Cattle Co. rearticulated Montana’s “general proposition” as making “efforts by a tribe
to regulate nonmembers, especially on non-Indian fee land, . . . ‘presumptively invalid,’ ”
554 U.S. 316, 330 (2008) (citation omitted), but proceeded to analyze federal executive
and legislative intent with regard to the specific factual context of tribal regulation of the
sale of non-Indian fee land: “In commenting on the policy goals Congress adopted with
the General Allotment Act, we noted that ‘[t]here is simply no suggestion’ in the history
of the Act ‘that Congress intended that the non-Indians who would settle upon alienated
allotted lands would be subject to tribal regulatory authority.’ ” Id. at 337 (alteration in
(continued...)
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adjudicatory jurisdiction over nonmembers is . . . ill-defined, since this Court’s own
pronouncements on the issue have pointed in seemingly opposite directions.”154 We
reject the State’s argument that these precedents create a “presumptive lack of [tribal]
jurisdiction” over nonmembers so that Minto Tribal Court had no colorable or plausible
claim to jurisdiction and Parks was not required to exhaust tribal remedies before
instituting his state court action.
The State does not cite a single federal or state court case in which the
Montana framework has been applied to deny full faith and credit to a tribal court
judgment in an ICWA-defined child custody proceeding because one of the parents was
a non-tribal member, let alone a case where a court has held that tribal jurisdiction was
so plainly lacking as to excuse exhaustion of tribal remedies. The superior court noted
that “[o]ne state supreme court has recently assumed Montana’s application in the ICWA
context where a tribe attempts to terminate the parental rights of a nonmember and
opined (in dicta) the tribe was without jurisdiction to do so,” referring to the Minnesota
Supreme Court’s decision in In re Welfare of R.S.155 The superior court was correct to
note that the one sentence reference to Montana in the R.S. case was dicta as the
Minnesota Supreme Court was concerned with the application of ICWA to preadoptive
placement proceedings, not with the jurisdiction of tribal courts to terminate the parental
rights of non-tribal members.156 When presented with an argument against the
153
(...continued)
original) (citation omitted).
154
533 U.S. at 376 (Souter, J. concurring) (alterations in original) (citation and
internal quotation marks omitted).
155
805 N.W.2d 44, 53 (Minn. 2011).
156
Id. (“Although not essential to our resolution of the case, we nevertheless
(continued...)
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jurisdiction of a tribal court to terminate the parental rights of a non-tribal member
parent, the Virginia Court of Appeals persuasively distinguished R.S. as limited to the
issue of tribal jurisdiction over preadoptive placement proceedings.157 The Virginia court
concluded that “[ICWA] does not limit tribal court jurisdiction to cases where both
parents are Indian. . . . It applies to parents of Indian children across the board. The
absence of an express mention of non-Indian parents does not alter the plain language
reading of the statute.”158
In the context of this appeal, we need decide only whether the Minto Tribal
Court’s claim to jurisdiction, based on S.P.’s membership or eligibility for membership
in the Native Village of Minto, is colorable or plausible. After our “careful examination
of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or
diminished, as well as a detailed study of relevant statutes, Executive Branch policy as
embodied in treaties and elsewhere, and administrative or judicial decisions,”159 we
conclude that the Minto Tribal Court’s claim to jurisdiction is both colorable and
plausible. Therefore, Parks does not satisfy the exception to the exhaustion of tribal
remedies doctrine identified in Strate.
156
(...continued)
address this [question].”).
157
Thompson v. Fairfax Cnty. Dep’t of Family Servs., 747 S.E.2d 838, 849
(Va. App. 2013) (“The issue before the court in [R.S.] was whether Congress intended
to permit transfer of adoptive and pre-adoptive placement proceedings to tribal
courts. . . . Thus, the decision in R.S. does not support the argument that the tribal court
lacks jurisdiction to terminate father’s parental rights.”).
158
Id. (citing Jimenez v. Quarterman, 555 U.S. 113, 118 (2009) (“[W]hen the
statutory language is plain, we must enforce it according to its terms.”)).
159
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 855­
56 (1985) (citation omitted).
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F. Summary
The Minto Tribal Court’s decision to terminate the parental rights of Parks
and Stearman is entitled to full faith and credit under ICWA because they failed to
exhaust tribal court remedies before collaterally attacking the decision in state court. Full
faith and credit entails a high degree of respect for tribal courts. As a measure of that
respect, we decline to allow Parks to relitigate his minimum due process and
jurisdictional claims in Alaska state courts when he failed to exhaust tribal remedies by
appealing to the Minto Court of Appeals. Parks has not satisfied any of the exceptions
to the exhaustion of tribal remedies doctrine. We therefore conclude his suit in Alaska
state court must be dismissed.
V. CONCLUSION
We REVERSE the superior court’s order denying full faith and credit to the
Minto Tribal Court’s decision terminating the parental rights of Parks and Stearman and
REMAND for dismissal of Parks’s state court claim with prejudice.
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