State v. Central Council of Tlingit and Haida Indian Tribes of Alaska , 2016 Alas. LEXIS 40 ( 2016 )

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THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA; PATRICK S. )
GALVIN, in his official capacity ) Supreme Court No. S-14935
as Commissioner of the Alaska )
Department of Revenue; and JOHN ) Superior Court No. 1JU-10-00376 CI
MALLONEE, in his official )
capacity as Director of the Alaska
) OPINION
Child Support Services Division, )
) No. 7093 – March 25, 2016
Appellants, )
)
v. )
)
CENTRAL COUNCIL OF TLINGIT )
AND HAIDA INDIAN TRIBES OF )
ALASKA, on its own behalf and as )
parens patriae on behalf of its )
members, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Juneau, Philip M. Pallenberg, Judge.
Appearances: Mary Ann Lundquist, Senior Assistant
Attorney General, Fairbanks, Stacy K. Steinberg, Chief
Assistant Attorney General, Anchorage, and Michael C.
Geraghty, Attorney General, Juneau, for Appellants. Jessie
Archibald, CCTHITA Child Support Unit Attorney, Juneau,
and Holly Handler and Sydney Tarzwell, Alaska Legal
Services Corporation, Juneau, for Appellee. Erin C.
Dougherty and Matthew N. Newman, Native American
Rights Fund, Anchorage, for Amicus Curiae National
Association of Tribal Child Support Directors. Karen L.
Loeffler, United States Attorney, and Richard L. Pomeroy,
Assistant United States Attorney, Anchorage, and Ragu-Jara
Gregg and Stacy Stoller, Department of Justice, Washington,
D.C., for Amicus Curiae United States.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
FABE, Chief Justice.
WINFREE, Justice, with whom STOWERS, Justice, joins,
concurring in part.
I. INTRODUCTION
A federally recognized Alaska Native tribe has adopted a process for
adjudicating the child support obligations of parents whose children are members of the
tribe or are eligible for membership, and it operates a federally funded child support
enforcement agency. The Tribe sued the State and won a declaratory judgment that its
tribal court system has subject matter jurisdiction over child support matters and an
injunction requiring the State’s child support enforcement agency to recognize the tribal
courts’ child support orders in the same way it recognizes such orders from other states.
Because we agree that tribal courts have inherent subject matter jurisdiction to decide the
child support obligations owed to children who are tribal members or are eligible for
membership, and that state law thus requires the State’s child support enforcement
agency to recognize and enforce a tribal court’s child support orders, we affirm.
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II. FACTS AND PROCEEDINGS
A. The Uniform Interstate Family Support Act
The Uniform Interstate Family Support Act (UIFSA)1 governs Alaska’s
enforcement of child support orders issued by tribunals other than Alaska’s state courts.
Federal child support enforcement funds are conditioned on a state’s passage of UIFSA,2
and as a result every state in the country has enacted identical legislation.3
1
AS 25.25.101 et seq.
2
42 U.S.C. § 666(f) (2012) (to qualify for reimbursement, “each State must
have in effect the Uniform Interstate Family Support Act”).
3
See ALA. CODE § 30-3A-101 et seq. (2014); ARIZ. REV. STAT. ANN.
§ 25-1201 et seq. (2014); ARK. CODE ANN. § 9-17-101 et seq. (2014); CAL. FAM. CODE
§ 4900 et seq. (West 2014); COLO. REV. STAT. § 14-5-101 et seq. (2014); CONN. GEN.
STAT. § 46b-212 et seq. (2014); DEL. CODE ANN. tit. 13, § 6-101 et seq. (2014); D.C.
CODE § 46-301.01 et seq. (2014); FLA. STAT. § 88.0011 et seq. (2014); GA. CODE ANN.
§ 19-11-100 et seq. (2014); HAW. REV. STAT. § 576b-101 et seq. (2014); IDAHO CODE
ANN. § 7-1001 et seq. (2014); 750 ILL. COMP. STAT. 22/101 et seq. (2014); IND. CODE
§ 31-18-1-1 et seq. (2014); IOWA CODE § 252k.101 et seq. (2014); KAN. STAT. ANN.
§ 23-36,101 et seq. (2014); KY. REV. STAT. ANN. § 407.5101 et seq. (West 2014); LA.
CHILD. CODE ANN. art 1301.1 et seq. (2014); ME. REV. STAT. tit. 19-A, § 2801 et seq.
(2014); MD. CODE ANN., FAM. LAW § 10-301 et seq. (2014); MASS. GEN. LAWS
ch. 209D, § 1-101 et seq. (2014); MICH. COMP. LAWS § 552.1101 et seq. (2014); MINN.
STAT. § 518C.101 et seq. (2014); MISS. CODE ANN. § 93-25-1 et seq. (2014); MO. REV.
STAT. § 454.1500 et seq. (2014); MONT. CODE ANN. § 40-5-101 et seq. (2014); NEB.
REV. STAT. § 42-701 et seq. (2014); NEV. REV. STAT. § 130.0902 et seq. (2014); N.H.
REV. STAT. ANN. § 546-B:1 et seq. (2014); N.J. STAT. ANN. § 2a:4-30.65 et seq. (West
2014); N.M. STAT. ANN. § 40-6a-100 et seq. (2014); N.Y. FAM. CT. ACT § 580-101et seq. (McKinney 2014); N.C. GEN. STAT. § 52c-1-100 et seq. (2014); N.D. CENT. CODE
§ 14-12.2-01 et seq. (2013); OHIO REV. CODE ANN. § 3115.01 et seq. (2014); OKLA.
STAT. tit. 43, § 601-100 et seq. (2014); OR. REV. STAT. § 110.303 et seq. (2014); 23 PA.
CONS. STAT. § 7101 et seq. (2014); R.I. GEN. LAWS § 15-23.1-100 et seq. (2014); S.C.
CODE ANN. § 63-17-2900 et seq. (2014); S.D. CODIFIED LAWS § 25-9B-101
et seq. (2014); TENN. CODE ANN. § 36-5-2001 et seq. (2014); TEX. FAM. CODE ANN.
(continued...)
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UIFSA allows parents to register and enforce child support orders issued
by the tribunal of another state4 in the same manner as orders issued by Alaska’s courts.5
It also allows parties to send the documents required to register another state’s support
order directly to the Alaska Child Support Services Division (CSSD), the arm of state
government charged with enforcing child support orders.6 CSSD enforces these orders
through administrative procedures “without initially seeking to register the order.”7
UIFSA also includes procedures for direct enforcement of orders from other tribunals.
Income withholding orders can be sent directly to obligors’ employers in Alaska without
first registering the orders with the state courts or CSSD.8 When an employer receives
a facially regular order from another state, the employer must comply and withhold the
income as directed, just as if the order had come from an Alaska court.9
Whether the out-of-state child support order is registered with Alaska’s
courts, enforced by CSSD without court involvement, or sent directly to an employer,
3
(...continued)
§ 159.001 et seq. (West 2014); UTAH CODE ANN. § 78b-14-101 et seq. (LexisNexis
2014); VT. STAT. ANN. tit. 15B, § 101 et seq. (2014); VA. CODE ANN. § 20-88.32 et seq.
(2014); WASH. REV. CODE § 26.21a.005 et seq. (2014); W. VA. CODE § 48-16-101
et seq. (2014); WIS. STAT. § 769.101 et seq. (2014); WYO. STAT. ANN. § 20-4-139
et seq. (2014).
4
AS 25.25.601-.602.
5
AS 25.25.603(b).
6
See AS 25.27.080.
7
AS 25.25.507(b).
8
See AS 25.25.501.
9
See AS 25.25.502(b).
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an obligor can contest its validity or enforcement.10 The party contesting an order has
the burden of proving one of several available defenses, including that “the issuing
tribunal lacked personal jurisdiction over the contesting party,” and that “there is a
defense under the law of this state to the remedy sought.”11
UIFSA applies to support orders “issued in another state.”12 As originally
enacted in 1995, Alaska’s version of UIFSA differed from the model version by not
including Indian tribes within its definition of “state.”13 In 2008 the State twice
requested that the federal Department of Health and Human Services exempt it from the
requirement that states enact UIFSA exactly as the model legislation was written. Both
requests were denied. In 2009 the State legislature amended AS 25.25.101 to include
Indian tribes in its definition of “state.”14 As Alaska’s version of UIFSA now reads, “the
term ‘state’ includes an Indian nation or tribe.”15
The law amending the statute included the legislature’s view that “UIFSA
does not determine the authority of an Indian tribe to enter, modify, or enforce a child
10
AS 25.25.506 (allowing an obligor to contest directly enforced orders);
AS 25.25.606 (procedure to contest registered orders).
11
AS 25.25.607(a)(1), (5).
12
See AS 25.25.507, .601; see also AS 25.25.101(14) (“ ‘[I]ssuing tribunal’
means the tribunal of a state or foreign country that issues a support order or a judgment
determining parentage of a child.”).
13
See ch. 57, § 4, SLA 1995 (omitting Indian tribes).
14
Ch. 45, § 3, SLA 2009.
15
AS 25.25.101(26).
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support order.”16 It went on to state that
the legislative intent is
(1) to remain neutral on the issue of the underlying child
support jurisdiction, if any, for the entities listed in the
amended definition of “state”;
(2) not to expand or restrict the child support jurisdiction,
if any, of the listed “state” entities in the amended definition;
and
(3) not to assume or express any opinion about whether
those entities have child support jurisdiction in fact or in
law.[17]
B. The Central Council Of Tlingit And Haida Indian Tribes Of Alaska’s
Tribal Child Support Unit
The Central Council of Tlingit and Haida Indian Tribes of Alaska (“Central
Council” or “the Tribe”) is a federally recognized Indian tribe based in Southeast
Alaska.18 Central Council has established a tribal court system asserting jurisdiction over
civil, criminal, probate, and juvenile law matters.19 Central Council also has a child
support enforcement program known as the Tribal Child Support Unit. The Unit was
first initiated in 2004, and it received full federal funding as Alaska’s first Tribal IV-D
program in 2007.
16
Ch. 45, § 1, SLA 2009.
17
Id.
18
Indian Entities Recognized and Eligible to Receive Services From the
United States Bureau of Indian Affairs, 79 Fed. Reg. 4748-02, 4752 (Jan. 29, 2014).
19
Central Council of Tlingit & Haida Indian Tribes of Alaska Tribal Code,
§ 06.01.020.
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Tribal IV-D programs are federally funded child support enforcement
programs.20 The federal government reimburses Tribal IV-D programs that comply with
federal statutory and regulatory requirements for much of the cost of enforcing child
support orders, just as it does for states’ child support enforcement programs. One of
these requirements is that any potential Tribal IV-D program describe “the population
subject to the jurisdiction of the Tribal court or administrative agency for child support
enforcement purposes.”21 Another is that each Tribal IV-D program “[e]stablish one set
of child support guidelines by law or action of the tribunal for setting and modifying
child support obligation amounts.”22
Central Council’s Tribal IV-D plan for the Tribal Child Support Unit
grounds the jurisdiction of the tribal court in the Central Council Constitution and
bylaws. Those bylaws first include the following statement of jurisdiction: “The
jurisdiction of the Tribal Court shall include all territory described in Article 1 of the
[Central Council] Constitution and it shall be over all persons therein, and any enrolled
Tribal member citizen and their descendants wherever they are located.”23 The bylaws
20
See Tribal Child Support Enforcement Programs, 69 Fed. Reg. 16,638-82
(Mar. 30, 2004) (codified at 45 C.F.R. pts. 286, 302, 309, and 310). The designation
“IV-D” is a reference to Title IV-D of the Social Security Act, codified at 42 U.S.C.
§§ 651-669b (2012), the federal law that governs the federal government’s
reimbursement of child support enforcement costs.
21
45 C.F.R. § 309.70 (2015).
22
45 C.F.R. § 309.105(a)(1).
23
Central Council of Tlingit & Haida Indian Tribes of Alaska Tribal Code,
§ 06.01.020(A). The territory described in Article I of the tribal constitution includes
lands within the Tribe’s dependent communities and tribal trust lands. CONST. OF THE
CENTRAL COUNCIL OF TLINGIT & HAIDA INDIAN TRIBES OF ALASKA art. I, § 1.
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further include a list of actions subjecting individuals to tribal jurisdiction.24 It is under
this provision, rather than the provision for territorial jurisdiction, that Central Council
asserts jurisdiction here. In its Tribal IV-D plan, Central Council explains that “[t]here
are a number of criteria that the Court can rely on to exert its jurisdiction, which include
sexual conduct which results in the paternity of a [Central Council] child and the
corresponding obligation to provide for the child.”
Central Council’s Tribal IV-D plan for the Tribal Child Support Unit also
describes the guidelines the tribal court uses to set child support obligations. The
guidelines enact a percentage-based formula that establishes the amount of an obligor’s
child support obligation based on adjusted income and number of children. The
guidelines also foresee certain deviations for low-income obligors, for in-kind support,
and for other causes.
Since the Tribal Child Support Unit began its operations in 2007, Central
Council’s tribal courts have heard and decided more than 100 child support cases. In
each case the child was a member of the Tribe, eligible for membership, or part of a
family that had received Temporary Assistance to Needy Families benefits from Central
Council, resulting in assignment of the right to child support to the Tribe. Central
Council’s courts have enforced child support obligations over the jurisdictional
objections of obligor parents who are neither members of the Tribe nor eligible for
membership.
The Tribal Child Support Unit has worked with its state counterpart, CSSD,
since 2007. CSSD has referred more than 700 existing child support cases to the Unit
for enforcement. CSSD has also enforced cases that the Unit referred to it, so long as the
original child support order was issued by a state court rather than an Alaska tribal court.
24
Id. at § 06.01.030.
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CSSD has not enforced any child support orders that Central Council’s tribal courts
originally issued. Only a state can garnish IRS tax refunds of obligor parents, and the
Unit has coordinated with the State of Washington to do so. But certain other
enforcement mechanisms, including garnishing an obligor parent’s Alaska
unemployment insurance benefits or Permanent Fund Dividend, require CSSD’s
cooperation and thus have been unavailable for enforcement of any child support orders
issued by Central Council’s tribal courts.
C. Proceedings Below
In January 2010 Central Council filed a complaint against the State seeking
a declaration that it possesses inherent jurisdiction to decide child support cases for
member and member-eligible children and an injunction directing the State to enforce
child support orders issued by its tribal courts. Both parties moved for summary
judgment.
The superior court granted summary judgment for the Tribe. The superior
court determined that “the issues of child custody and child support are closely
intertwined.” It grounded this connection between custody and support in two sources
of Alaska law: first, McCaffery v. Green, a 1997 case in which we held that an Alaska
trial court with jurisdiction to modify an out-of-state custody order also had jurisdiction
to modify support obligations;25 and second, the provisions of Alaska Civil Rule 90.3,
which the superior court interpreted to “require [a trial] court to consider child support
any time it makes a custody decision.” The superior court also noted that rejecting
Central Council’s assertion of jurisdiction to set child support orders “would provide a
substantial deterrent for parents to bring custody disputes to tribal courts, since tribal
courts could not decide all of the issues in the case.”
25
See 931 P.2d 407, 414 (Alaska 1997).
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In light of the connection between child custody and child support, and
relying on our holding in John v. Baker (John I) that Alaska tribes have inherent
sovereign jurisdiction to adjudicate child custody matters,26 the superior court ruled that
Central Council’s jurisdiction extended to child support adjudication as well:
The determination and enforcement of the duty of
parents to support a child who happens to be a tribal member
is no less a part of the tribe’s internal domestic relations than
the decision as to which parent the child will live with, which
school the child will attend, or any of the other important
decisions that custody courts make every day. Ensuring that
tribal children are supported by their noncustodial parents
may be the same thing as ensuring that those children are fed,
clothed, and sheltered. The future of a tribe — like that of
any society — requires no less.
The superior court entered an order “declaring that the Tribe’s inherent
rights of self-governance include subject matter jurisdiction to adjudicate child support
for children who are members of the Tribe or eligible for Tribal membership.” The order
also required the State to treat Central Council’s tribal courts and the Tribal Child
Support Unit as it would any other state’s courts and child support enforcement agency
under UIFSA and the regulations connected to Title IV-D.
The superior court’s order on summary judgment noted that Central
Council’s action for a declaratory judgment and injunctive relief did “not require the
[superior] court to decide the issue of personal jurisdiction, which must be decided on
a case by case basis.” In some cases, the superior court speculated, “the exercise of
jurisdiction by the tribal court may well violate due process.” Ultimately, both parties
26
See 982 P.2d 738, 748-49 (Alaska 1999).
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agreed “that the [superior] court should leave questions of personal jurisdiction for
decision in future cases.”
The State appeals.
III. STANDARD OF REVIEW
We review the scope of tribal jurisdiction de novo.27 We also “review a
grant of summary judgment de novo, applying our independent judgment.”28 “Under
de novo review, we apply ‘the rule of law that is most persuasive in light of precedent,
reason, and policy.’ ”29
IV. DISCUSSION
UIFSA requires that Alaska courts register and CSSD enforce child support
orders issued by the tribunal of “an Indian nation or tribe.”30 Central Council does not
argue that either Title IV-D of the Social Security Act or UIFSA is the source of its
tribunals’ authority to decide child support matters. Instead, the legal question presented
in this appeal is whether Central Council’s tribal courts have inherent sovereign authority
to exercise subject matter jurisdiction over child support matters and thus are “authorized
tribunals” for purposes of UIFSA.
27
See State v. Native Village of Tanana, 249 P.3d 734, 737 (Alaska 2011).
28
Estate of Kim ex rel. Alexander v. Coxe, 295 P.3d 380, 385 (Alaska 2013).
29
Native Village of Tanana, 249 P.3d at 737 (quoting Glamann v. Kirk, 29
P.3d 255, 259 (Alaska 2001)).
30
AS 25.25.101(14), (26).
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A. Subject Matter Jurisdiction Derived From Inherent, Non-Territorial
Sovereignty Has Two Dimensions.
The jurisdictional reach of tribal courts is a question of federal law.31 As
the United States Supreme Court has long recognized, “Indian tribes are unique
aggregations possessing attributes of sovereignty over both their members and their
territory.”32 In most states there is a “traditional reservation-based structure of tribal
life,”33 and many tribes consequently look to both tribal membership and tribal land as
their sources of sovereignty and tribal court jurisdiction.34 But a 1971 federal law known
as the Alaska Native Claims Settlement Act (ANCSA) extinguished all Native claims to
land in Alaska and revoked all but one Indian reservation in the state.35 The United
States Supreme Court has held that the former reservation lands ANCSA transferred to
31
See Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S.
316, 324 (2008).
32
United States v. Mazurie, 419 U.S. 544, 557 (1975).
33
John I, 982 P.2d 738, 754 (Alaska 1999).
34
See, e.g., CONST. OF THE BLUE LAKE RANCHERIA art. II, § 1 (“Territory and
Jurisdiction. The jurisdiction of the tribe, . . . and its tribal courts shall extend to the
following: (a) All lands, water and other resources within the exterior boundaries of the
Blue Lake Rancheria, . . . (e) All tribal members, wherever located, to the fullest extent
permitted by applicable Federal law.”); CONST. OF THE LITTLE RIVER BAND OF OTTAWA
art. I, § 2 (“Jurisdiction Distinguished From Territory. The Tribe’s jurisdiction over its
members and territory shall be exercised to the fullest extent consistent with this
Constitution, the sovereign powers of the Tribe, and federal law.”); CONST. OF THE
SIPAYIK MEMBERS OF THE PASSAMAQUODDY TRIBE art. II, § 1 (“Scope. The authority of
the government established by this Constitution shall extend over all Sipayik members
of the Passamaquoddy Tribe and all persons, subjects, territory and property now or
hereafter included within the jurisdiction of the Pleasant Point Reservation of the
Passamaquoddy Tribe . . . .”).
35
See 43 U.S.C. §§ 1603, 1618(a) (2012).
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Native-owned, state-chartered regional and village corporations in exchange for
extinguishing those claims are not “Indian country” under the federal statute that defines
the term.36 As a result of this history, we have had to examine the inherent,
non-territorial sovereignty of Indian tribes, a question of federal law that other “courts
have not had occasion to tease apart.”37
Our decisions analyzing the inherent, non-territorial subject matter
jurisdiction of Alaska tribal courts have implicitly recognized two separate dimensions
of this jurisdiction. Both dimensions reflect our understanding that inherent,
non-territorial subject matter jurisdiction derives from “a tribe’s ability to retain
fundamental powers of self-governance.”38 The first dimension of this jurisdiction
relates to the character of the legal question that the tribal court seeks to decide, while
the second relates to the categories of individuals and families who might properly be
brought before the tribal court.
Although our earlier decisions have not always clarified that inherent,
non-territorial subject matter jurisdiction has the two dimensions we now expressly
recognize, they have addressed both the character of the legal questions that tribal courts
have adjudicative authority to decide and the populations subject to that authority. In
doing so, our decisions have aligned with the definition of subject matter jurisdiction
36
See Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, 532-34
(1998) (interpreting 18 U.S.C. § 1151).
37
John I, 982 P.2d at 754; cf. Kaltag Tribal Council v. Jackson, 344 F. App’x
324, 325 (9th Cir. 2009) (“Reservation status is not a requirement of jurisdiction because
‘[a] Tribe’s authority over its reservation or Indian country is incidental to its authority
over its members.’ ” (quoting Native Village of Venetie I.R.A. Council v. Alaska, 944
F.2d 548, 559 n.12 (9th Cir. 1991))).
38
John I, 982 P.2d at 758.
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advanced by a leading treatise on Indian law: “the ability of a court to hear a particular
kind of case, either because it involves a particular subject matter or because it is brought
by a particular type of plaintiff or against a particular type of defendant.”39
Our foundational decision for the analysis of tribal courts’ exercise of
subject matter jurisdiction on the basis of inherent, non-territorial sovereignty is John I.40
That case arose when a father who was a member of Northway Village filed a custody
petition in the Northway tribal court and then, after the tribal court issued its custody
order, filed an identical suit in state superior court.41 Although the children’s mother was
not a member of Northway Village she “consented to Northway’s jurisdiction” during
the first suit and then moved to dismiss the superior court suit on the basis of the tribal
court’s order.42
In John I we examined the first dimension of tribal courts’ inherent, non-
territorial subject matter jurisdiction: the character of the legal question at issue. We
surveyed federal decisions and recognized that “in determining whether tribes retain their
sovereign powers, the United States Supreme Court looks to the character of the power
that the tribe seeks to exercise, not merely the location of events.”43 We focused our
analysis on whether adjudicating child custody matters — the power that the Northway
Village tribal court sought to exercise in John I — was the type of legal question that
falls within tribal courts’ membership-based subject matter jurisdiction. We
39
COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 7.01, at 597 (Nell Jessup
Newton ed., 2012).
40
982 P.2d 738.
41
Id. at 743.
42
Id.43
Id. at 752.
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characterized child custody as an “internal domestic matter[]”44 that “lies at the core of
sovereignty.”45 Based on our analysis of the rights at issue, we held “that the type of
dispute before us today — 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.”46
We next turned to the second dimension of inherent, non-territorial subject
matter jurisdiction: the categories of litigants whose disputes the tribal courts have
authority to decide. We noted that “[b]ecause 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.”47 We explicitly
recognized that the mother in John I was “not a member of Northway Village,” but our
remand order only directed the superior court to determine the children’s eligibility for
tribal membership.48
A later case more distinctly separated the two dimensions of inherent,
non-territorial sovereignty by deciding only one of the dimensions and explicitly
declining to reach the other. In State v. Native Village of Tanana a tribe sought
declaratory and injunctive relief related to its sovereign authority to initiate child custody
44
Id. at 754.
45
Id. at 758.
46
Id. at 759.
47
Id.48
Id. While the mother had consented to tribal jurisdiction, id. at 743, we
emphasized that the key inquiry was the children’s membership or membership-eligible
status, id. at 759.
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proceedings as the Indian Child Welfare Act (ICWA)49 defines the term.50 After
analyzing our own cases, precedent from federal courts, and congressional actions, we
concluded that tribes do have inherent sovereign jurisdiction and authority to initiate
ICWA-defined child custody proceedings.51
Although we recognized this jurisdiction, we concluded that the record
developed at trial did not contain “sufficient facts to make determinations about specific
limitations on inherent tribal jurisdiction over ICWA-defined child custody
proceedings.”52 The reach of the jurisdiction would depend on, among other things, “the
proper exercise of subject matter and personal jurisdiction.”53 Among the “many issues”
left explicitly undecided were “the extent of tribal jurisdiction over non-member parents
of Indian children” and “the extent of tribal jurisdiction over Indian children or member
parents who have limited or no contact with the tribe.”54
Thus, our decision in Tanana analyzed the first dimension of the subject
matter inquiry but not the second. By acknowledging that questions of subject matter
jurisdiction remained unanswered even after holding that “tribes are not necessarily
precluded from exercising inherent sovereign jurisdiction to initiate ‘child custody
49
25 U.S.C. § 1901 et seq. (2012).
50
249 P.3d 734, 736 (Alaska 2011).
51
See id. at 751.
52
Id.53
Id. at 752 (emphasis added).
54
Id.-16- 7093
proceedings’ as ICWA defines that term,”55 we recognized that there are more facets of
subject matter jurisdiction than just the character of the legal question at issue. The
categorical analysis of “the extent of tribal court jurisdiction over non-member parents
of Indian children” was not necessarily reserved for a case-by-case determination, but
it could not be decided on the record on appeal in that case.56 A complete description of
the inherent, non-territorial subject matter jurisdiction of tribal courts consists of both the
types of legal questions those courts can properly hear and the categories of parties
whose legal disputes those courts can properly resolve.
B. Adjudicating Child Support Is Within Tribal Courts’ Inherent,
Non-Territorial Subject Matter Jurisdiction.
The superior court concluded that “[t]he determination and enforcement of
the duty of parents to support a child” is an integral “part of the tribe’s internal domestic
relations,” and is thus within Central Council’s courts’ inherent, non-territorial subject
matter jurisdiction.57 We agree, and we hold that the adjudication of child support
55
Id. at 736.
56
Id. at 752.
57
The superior court’s order on summary judgment also examined the extent
to which “the issues of child custody and child support are closely intertwined” and the
potential for “procedural manipulation” if tribal courts have jurisdiction over one but not
the other. This method of analyzing Central Council’s inherent, non-territorial subject
matter jurisdiction is inconsistent with the United States Supreme Court’s statement that
the sovereign authority of Indian tribes “does not vary depending on the desirability of
a particular regulation.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554
U.S. 316, 340 (2008). Tribal court jurisdiction over child support matters must be
analyzed on its own merits rather than as an extension of the recognized jurisdiction over
child custody matters. See also John v. Baker (John III), 125 P.3d 323, 326-27 (Alaska
2005) (“Given the plain language of John I and John II, it is clear that we believed that
the custody and support matters were separate and that the transfer of the former to the
(continued...)
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obligations is a component of a tribe’s inherent power “to regulate domestic relations
among members.”58
We have held that tribes’ powers of internal self-governance include the
power to determine the custody of children of divorcing parents,59 the power to accept
transfer jurisdiction of ICWA-defined custody cases from state courts,60 and the power
to initiate child protection cases.61 In each of the cases in which we have recognized
these powers, we discussed a federal statute — ICWA62 — which is not directly
applicable to the question of child support now before us. Even in John I, an inter-
parental custody dispute to which ICWA did not strictly apply,63 we examined the statute
as relevant evidence of Congress’s intent.64
The United States Supreme Court has described ICWA as a reaction to
“abusive child welfare practices that resulted in the separation of large numbers of Indian
children from their families and tribes through adoption or foster care placement, usually
57
(...continued)
tribal court did not entail the transfer of the latter.” (first citing John I, 982 P.2d 738(Alaska 1999); then citing John v. Baker (John II), 30 P.3d 68 (Alaska 2001))).
58
John I, 982 P.2d at 758 (quoting Montana v. United States, 450 U.S. 544,
564 (1981)).
59
See id. at 759.
60
See In re C.R.H., 29 P.3d 849, 852 (Alaska 2001).
61
See Native Village of Tanana, 249 P.3d at 736, 750-51.
62
25 U.S.C. § 1901 et seq. (2012).
63
See John I, 982 P.2d at 746-47.
64
See id. at 754 (“Although the custody dispute at the center of this case falls
outside ICWA’s scope, Congress’s purpose in enacting ICWA reveals its intent that
Alaska Native villages retain their power to adjudicate child custody disputes.”).
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in non-Indian homes.”65 Congress elected to address these practices by limiting state
court jurisdiction and recognizing tribal court jurisdiction over ICWA-defined child
custody matters.66 Although the statute has provisions that establish the substantive law
state courts are to apply — for example, a preference order for adoptive placements67 —
its primary means to enforce its provisions is an allocation of jurisdiction in
ICWA-defined custody cases.
Congress has not suggested that similar practices exist or need to be
addressed in the realm of child support. Although Congress gave the Secretary of the
Department of Health and Human Services the authority to reimburse tribes for child
support enforcement costs in 1996,68 Title IV-D of the Social Security Act is a funding
statute that does not purport to expand or otherwise alter its recipients’ jurisdiction.
Central Council’s briefing before the superior court asserted that its jurisdiction to
adjudicate child support is not tied to Title IV-D or to any other act of Congress.
Although ICWA was relevant to our earlier decisions on the subject matter
jurisdiction of tribal courts, we have never suggested that it was the sole or even primary
basis of that jurisdiction. Doing so would be inconsistent with the United States
Supreme Court’s pre-ICWA recognition of tribal court jurisdiction over custody
65
Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989).
66
See 25 U.S.C. § 1911; see also Native Village of Tanana, 249 P.3d at 751
(“ICWA creates limitations on states’ jurisdiction over ICWA-defined child custody
proceedings, not limitations on tribes’ jurisdiction over those proceedings.”); John I, 982
P.2d at 753 (“ICWA’s goal was to increase tribal control over custody decisions
involving tribal children.”).
67
See 25 U.S.C. § 1915(a).
68
See Personal Responsibility and Work Opportunity Reconciliation Act of
1996, Pub. L. No. 104-193, § 375, 110 Stat. 2105 (1996).
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matters.69 Instead, in John I, our examination of ICWA was in service of the point that
an earlier statute, ANCSA, was not intended to “eradicate tribal court jurisdiction over
family law matters.”70 We “follow federal law by beginning from the premise that tribal
sovereignty with respect to issues of tribal self-governance exists unless divested.”71
At issue in both John I and this case is the inherent power of tribes “to
conduct internal self-governance functions.”72 Although child support is not governed
by ICWA, as some child custody matters are, it is equally “a family law matter integral
to tribal self-governance,”73 and as such is part of the set of core sovereign powers that
tribes retain.74 Moreover, “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’ ”75 is relevant to both child support and custody.
Child support orders are a pillar of domestic relations and are directly
related to the well-being of the next generation. As the superior court explained,
“[e]nsuring that tribal children are supported by their noncustodial parents may be the
69
See Fisher v. Dist. Ct. of the 16th Jud. Dist. of Mont., 424 U.S. 382, 389
(1976).
70
982 P.2d at 753.
71
Id. at 752; see also id. at 752-53 (“[W]e will not lightly find that Congress
intended to eliminate the sovereign powers of Alaska tribes.”).
72
Id. at 758.
73
Id.
74
See Hepler v. Perkins, 13 INDIAN L. REP. 6011, 6015 (Sitka Cmty. Ass’n
Tribal Court, Apr. 7, 1986) (“Tribal jurisdiction to care for tribal children is simply not
related to nor dependent on the legal status of any given parcel of land.”).
75
Simmonds v. Parks, 329 P.3d 995, 1007 (Alaska 2014) (quoting 25 U.S.C.
§ 1901(3)).
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same thing as ensuring that those children are fed, clothed, and sheltered. The future of
a tribe — like that of any society — requires no less.” “[A] tribe has a strong interest in
‘preserving and protecting the Indian family as the wellspring of its own future,’ ”76 and
determining what resources a child will enjoy from her parents is a crucial aspect of
promoting that interest. As the United States Court of Appeals for the Ninth Circuit has
recognized, parental financial neglect of children “is a matter of vital importance to the
community.”77
Recognizing tribal courts’ inherent, non-territorial subject matter
jurisdiction over child support matters is consistent with our description of tribal power.
Although our cases recognizing specific instances of that power have largely related to
child custody, they are situated within the larger context of family affairs. In John I we
recognized “the fundamental powers of tribes to adjudicate internal family law affairs
like child custody disputes.”78 In Tanana we described John I as “foundational Alaska
authority regarding Alaska Native tribal jurisdiction over the welfare of Indian
children.”79 And in Simmonds v. Parks we reiterated that John I recognized “tribal
sovereignty to decide cases involving the best interests of tribal children.”80 When child
76
John I, 982 P.2d at 752 (quoting H.R. REP. No. 95-1386, at 19 (1978)).
77
United States v. Ballek, 170 F.3d 871, 874 (9th Cir. 1999) (discussing the
importance of child support obligations in concluding that child support awards may be
enforced through imprisonment).
78
982 P.2d at 759.
79
State v. Native Village of Tanana, 249 P.3d 734, 750 (Alaska 2011).
80
329 P.3d at 1008.
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support is ordered it is fundamental to its recipients’ welfare and best interests and thus
is “of vital and fundamental importance to tribal self-governance.”81
The subsequent history of the John v. Baker litigation also weighs in favor
of Central Council’s assertion of subject matter jurisdiction over child support orders.
In John III we considered the argument that our decision in John I implicitly recognized
tribal court subject matter jurisdiction over not just child custody matters but also child
support matters.82 The posture of the case made it unnecessary for us to decide whether
the tribal court in fact had the necessary jurisdiction to issue child support orders.83 But
we did discuss what qualities a tribal child support order would require to be “a
recognizable child support order to which the [superior] court could extend comity.”84
Had the tribal court lacked subject matter jurisdiction to issue a child support order, this
discussion of the proper contours of comity would have conflicted with our statement in
John I’s comity analysis that “our courts should refrain from enforcing tribal court
judgments if the tribal court lacked personal or subject matter jurisdiction.”85
The actions of the federal executive branch also suggest that Central
Council’s tribal courts have inherent, non-territorial subject matter jurisdiction over child
81
Id.
82
See John III, 125 P.3d 323, 326 (Alaska 2005).
83
See id. at 324 (“We conclude that the superior court correctly ruled that
child support had never been referred to the tribal court and that the division could
enforce the court’s child support order. This disposes of the case and makes it
unnecessary to resolve the additional jurisdictional issues.”).
84
Id. at 327; see also id. (“Although a tribal child support order need not
match the format of a support order issued by the Alaska courts, it must, at a minimum,
be concrete enough to be enforceable.”).
85
982 P.2d 738, 763 (Alaska 1999).
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support matters. The part of Title IV-D that makes Tribal IV-D programs like Central
Council’s eligible for federal reimbursement requires each applicant program to
“demonstrate[] to the satisfaction of the Secretary [of the Department of Health and
Human Services] that it has the capacity to operate a child support enforcement program
meeting the objectives of this part, including . . . establishment, modification, and
enforcement of support orders.”86 Similarly, the regulations enacted to govern
Tribal IV-D eligibility require that all applicant programs include “a description of the
population subject to the jurisdiction of the Tribal court or administrative agency for
child support enforcement purposes.”87 Central Council’s application identified its tribal
court jurisdiction over child support matters as stemming from the tribal code and
constitutional provisions that allow jurisdiction based on certain acts of affiliation with
the Tribe, rather than asserting a territorial basis for jurisdiction. By accepting Central
Council’s application to make the Tribal Child Support Unit a Tribal IV-D program, the
Secretary of the Department of Health and Human Services confirmed that this assertion
of non-territorial jurisdiction over child support matters complies with the federal
statutory and regulatory requirements for Tribal IV-D programs.
The State argues that the near certainty that state agencies will be involved
with the enforcement of child support orders issued by tribal courts distinguishes this
case from our previous decisions regarding child custody. The State maintains that
requiring its state child support program, CSSD, to coordinate with many tribal courts
will impose additional costs and disrupt the uniformity of child support awards.88 In
86
42 U.S.C. § 655(f) (2012).
87
45 C.F.R. § 309.70 (2015).
88
We note that while coordination costs will no doubt increase, it is hardly
(continued...)
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particular, the State points to the potential difficulty of modifying a tribal support order,
which might prevent the State from recouping funds it spends on children in its custody
who are subject to a tribal order.89
But these concerns do not limit the exercise of tribal court jurisdiction. Our
decisions exploring the retained inherent self-governance powers of Alaska tribes contain
no suggestion that the burden on state agencies associated with recognizing tribal
authority is part of the analysis. The State’s reliance on the United States Supreme
Court’s discussion of “considerable” state interests in Nevada v. Hicks90 is inapposite.
That case concerned “tribal authority to regulate state officers in executing process
related to the violation, off reservation, of state laws.”91 The Supreme Court explicitly
held that such authority “is not essential to tribal self-government or internal relations —
88
(...continued)
clear that enforcement costs will similarly rise. Central Council’s Tribal Child Support
Unit distributed nearly $500,000 in child support collections in fiscal year 2012. OFFICE
OF CHILD SUPPORT ENFORCEMENT, FY 2012 PRELIMINARY REPORT TO CONGRESS
(2013), Tbl. P-37. Without the Unit it would have fallen to CSSD to distribute those
same collections. To the extent that CSSD’s enforcement costs may rise as a result of
more tribal children and custodial parents having ready access to a tribunal that can
adjudicate their child support disputes, those increased costs will reflect an increased
realization of the role that CSSD already performs so admirably: serving Alaskan
children.
89
UIFSA provides for modification of an out-of-state child support order only
when: (1) all parties consent; (2) none of the parties reside in the issuing state, the party
seeking modification “is not a resident of this state,” and “the respondent is subject to the
personal jurisdiction of the tribunal of this state;” or (3) “all of the individual parties
reside in this state and the child does not reside in the issuing state.” AS 25.25.611, .613.
We do not have occasion in this case to decide how the statutory references to residence
should be interpreted when the issuing tribunal exercises membership-based jurisdiction.
90
533 U.S. 353, 364 (2001).
91
Id.-24- 7093
to ‘the right to make laws and be ruled by them.’ ”92 This holding did not depend on the
extent of the state’s interest, but instead flowed from the Court’s exploration of “what
is necessary to protect tribal self-government and control internal relations.”93
State agencies are also involved in enforcing child custody orders, and non­
compliance with these orders can expose parents to criminal contempt charges and
imprisonment.94 And there is little doubt that child support enforcement frequently
requires more routine and sustained contacts between a state enforcement agency and a
noncustodial parent. But this does not make child support any less focused on “[t]he
welfare of tribal children.”95 In both child custody and child support matters, the
instruments of state government are employed as a means of enforcing duties that run
between parents and children; their involvement does not transform the power at issue
into one that is no longer concerned with internal domestic relations.
Ensuring that parents financially care for their children is a pillar of
domestic relations and is directly related to the well-being of the next generation.
Setting, modifying, and enforcing such obligations is one way that “[t]ribal courts play
a vital role in tribal self-government.”96 We hold that tribal courts have inherent,
non-territorial subject matter jurisdiction to adjudicate parents’ child support obligations.
92
Id. (citing Strate v. A-1 Contractors, 520 U.S. 438, 459 (1997)).
93
Id. at 360; see also Washington v. Confederated Tribes of Colville Indian
Reservation, 447 U.S. 134, 154 (1980) (“[E]ven if the State’s interests were implicated
by the tribal taxes, a question we need not decide, it must be remembered that tribal
sovereignty is dependent on, and subordinate to, only the Federal Government, not the
States.”).
94
AS 09.50.010(5).
95
Simmonds v. Parks, 329 P.3d 995, 1008 (Alaska 2014).
96
See Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 14 (1987).
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C. Tribal Courts’ Inherent, Non-Territorial Subject Matter Jurisdiction
Over Child Support Reaches Nonmember Parents Of Children Who
Are Tribal Members Or Are Eligible For Membership.
In the State’s briefing before the superior court it argued that jurisdiction
over nonmembers is an issue of subject matter jurisdiction, not merely personal
jurisdiction. In its briefing before this court and at oral argument the State urged us to
address Central Council’s subject matter jurisdiction over nonmembers. As discussed
supra in Part IV.A, we agree that identifying the individuals and families who might
properly be brought before a tribal court is a question of subject matter jurisdiction.97
We also agree with the State that the issue is ripe for a decision, as the Tribe’s complaint
here asserted jurisdiction over all cases where the child is a member or is eligible for
membership.98 As the State noted at oral argument, that set of cases “necessarily
includes” cases in which the child is a member or is membership-eligible but one parent
is not. And the issue is far from being an abstract question: Central Council’s tribal
courts have already decided child support cases over the jurisdictional objections of
obligor parents who are neither members of the Tribe nor eligible for tribal
97
This analysis does not change when one parent is not a member of the tribe,
notwithstanding any separate personal-jurisdiction challenges that a nonmember parent
might raise.
98
Although the Tribe argued that we need not address the question of
personal jurisdiction over nonmember parents, it took the position that the Tribe’s
subject matter jurisdiction depends only on the membership status of the child. Under
this theory, the nonmember status of a parent is not a bar to subject matter jurisdiction.
It also urged us to affirm the superior court’s decision, which recognized the Tribe’s
subject matter jurisdiction over child support orders for tribal children without making
an exception for nonmember parents.
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membership.99 Finally, as reflected in the parties’ statements at oral argument, guidance
from this court can resolve this long-standing question and allow the parties to move
forward together in enforcing child support orders for the benefit of the Tribe’s and the
State’s children.
1. Because child support jurisdiction is tied to a tribe’s inherent
sovereignty, Montana v. United States does not apply.
The State argues that the United States Supreme Court’s decision in
Montana v. United States100 permits a tribe to regulate a nonmember only if the
nonmember enters into a consensual business relationship with the tribe or its members
or if the nonmember’s conduct on land the tribe owns within a reservation imperils the
very existence of the tribal community. The State contends that child support
adjudication does not fit within either of these circumstances, and thus that Central
Council cannot exercise subject matter jurisdiction over nonmember parents in child
support cases.
We considered a similar argument in Simmonds v. Parks.101 That case arose
out of a tribal court order terminating the parental rights of a nonmember.102 Rather than
appeal the decision within the tribal court system, the nonmember father sought to regain
99
Cf. State v. Native Village of Tanana, 249 P.3d 734 (Alaska 2011) (noting
“a number of hypothetical fact patterns raising difficult questions” about jurisdiction over
parents, id. at 748, and the absence of “sufficient facts” to decide those questions, id. at
751, and therefore explicitly declining to decide “the extent of tribal jurisdiction over
non-member parents of Indian children,” id. at 752 (emphasis added)).
100
450 U.S. 544 (1981).
101
329 P.3d 995 (Alaska 2014).
102
Id. at 998.
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custody of his daughter in state court.103 We adopted the federal exhaustion of tribal
remedies doctrine and held that parties are not permitted to collaterally attack tribal court
judgments unless they have exhausted all available appellate tribal court remedies or
satisfy one of the recognized exceptions to the doctrine.104
In Simmonds the State intervened and argued that exhaustion was not
required because the tribal court plainly lacked jurisdiction over nonmember parents of
tribal children.105 The State’s argument relied heavily on its understanding that Montana
and a subsequent decision by the United States Supreme Court, Strate v. A-1
Contractors,106 jointly created a presumption that tribal courts lacked jurisdiction in
circumstances like the one then at issue.107
We rejected the State’s argument and instead held that “tribal jurisdiction
[over nonmember parents in parental rights termination proceedings] is, at the very least,
colorable and plausible.”108 We carefully examined the federal cases that the State
contended created a presumption against jurisdiction and determined that those decisions
were significantly more limited in scope than the State had acknowledged. “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
103
Id.104
See id. at 1011-14.
105
See id. at 1019.
106
520 U.S. 438 (1997).
107
See Simmonds, 329 P.3d at 1019.
108
Id. at 1017.
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inherent tribal sovereignty.”109 The question of tribal court jurisdiction over parental
rights termination proceedings significantly differed from the land management issues
at play in Montana; no decision from any court had held that Montana prevented a tribal
court from properly deciding a child custody proceeding involving nonmembers.110
Given the readily apparent distinctions between the legal authority exercised by the tribal
court in Simmonds and that at issue in Montana and other cases, we concluded that the
tribal court’s claim to jurisdiction was both colorable and plausible, and therefore that
the nonmember had not been excused from the requirement that he exhaust tribal
appellate remedies before launching a collateral attack in state court.111
In Simmonds we were only charged with determining whether the tribal
court’s claim to jurisdiction over a nonmember parent on the basis of a child’s
membership or eligibility for membership was colorable or plausible.112 This case, in
contrast, requires that we decide whether tribal courts’ inherent, non-territorial subject
matter jurisdiction does in fact extend to the adjudication of the child support rights and
obligations of nonmember parents of children who are members or eligible for
membership. We hold that because tribes’ inherent authority over child support stems
from their power over family law matters concerning the welfare of Indian children —
an area of law that is integral to tribal self-governance — the basis and limits of that
authority are tied to the child rather than the parent.
109
Id. at 1019.
110
See id. at 1021-22.
111
See id. at 1022.
112
See id.; see also Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d
943, 948 (9th Cir. 2008) (noting that exhaustion of tribal court remedies in a custody
dispute was not excused because “[a]lthough the rights of non-member Plaintiff are
affected, it is not clear that that fact alone would strip the Tribal Court of jurisdiction”).
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In this appeal, the State once again argues that Montana dictates the
outcome in this case and precludes subject matter jurisdiction over nonmember parents.
Montana is a case about the power of a tribe to regulate “hunting and fishing by
nonmembers of a tribe on lands no longer owned by the tribe.”113 The Supreme Court
held that such regulation could not be sustained “as an incident of the inherent
sovereignty of the Tribe over the entire Crow Reservation.”114 The Court announced
“the general proposition that the inherent sovereign powers of an Indian tribe do not
extend to the activities of nonmembers of the tribe,”115 and then identified what have
come to be known as “the Montana exceptions”116 to this proposition:
A tribe may regulate, 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.
A tribe may also retain 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.[117]
The Supreme Court has clarified that “[t]hese exceptions are ‘limited’ ones, and cannot
be construed in a manner that would ‘swallow the rule’ or ‘severely shrink’ it.”118
113
See Montana v. United States, 450 U.S. 544, 564 (1981).
114
Id. at 563.
115
Id. at 565.
116
E.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S.
316, 330 (2008).
117
Montana, 450 U.S. at 565-66 (citations omitted).
118
Plains Commerce, 554 U.S. at 330 (first quoting Atkinson Trading Co. v.
(continued...)
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“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.”119 The Montana Court
described the regulatory issue before it as “a narrow one.”120 The Supreme Court has
subsequently held that determining 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, 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.”121 It has also called for “a proper balancing” of the
interests of tribes and nonmember litigants.122 Justice O’Connor, in a concurring
opinion, noted that the holding in Montana and its progeny “that tribal jurisdiction must
‘accommodat[e]’ various sovereign interests does not mean that tribal interests are to be
nullified through a per se rule.”123
Moreover, it is important to consider the source of tribal authority that
Montana and ensuing cases have analyzed, because it critically differs from the source
118
(...continued)
Shirley, 532 U.S. 645, 647, 655 (2001); then quoting Strate v. A-1 Contractors, 520 U.S.
438, 458 (1997)).
119
Simmonds v. Parks, 329 P.3d 995, 1020 (Alaska 2014) (citing Montana,
450 U.S. at 557-63).
120
Montana, 450 U.S. at 557.
121
Nat’l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 855­
56 (1985) (citation omitted).
122
Nevada v. Hicks, 533 U.S. 353, 374 (2001).
123
Id. at 395 (O’Connor, J., concurring in part) (alteration in original) (quoting
Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 156 (1980)).
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of authority at issue here. “Indian tribes are unique aggregations possessing attributes
of sovereignty over both their members and their territory.”124 The authority Central
Council invokes in this appeal stems from its sovereignty over its members. In contrast,
the Montana Court analyzed the breadth “of the inherent sovereignty of the Tribe over
the entire Crow Reservation”125 — a distinctly territorial basis of sovereignty. The
Supreme Court’s later statements regarding the reach of tribal court jurisdiction have
similarly arisen in cases in which tribes invoked authority based on territory.126
Translating the Montana Court’s analysis from the context in which it was delivered to
that of this appeal is not the simple matter the State portrays it to be, but instead requires
understanding how the limits of land-based sovereignty are related to its territorial basis,
and thus what similar limits may exist on inherent sovereignty based on tribal
membership.
The Ninth Circuit considered the applicability of the Montana rule and the
proper application of the Montana exceptions with regard to territorial sovereignty in a
2011 case, Water Wheel Camp Recreational Area, Inc. v. LaRance.127 In Water Wheel
a tribal court exercised jurisdiction over claims arising from the tribe’s lease of tribal
124
United States v. Mazurie, 419 U.S. 544, 557 (1975); cf. John I, 982 P.2d
738, 759 (Alaska 1999) (“The federal decisions contain language supporting the
existence of tribal sovereignty based on either land or tribal status.”).
125
Montana, 450 U.S. at 563 (emphasis added).
126
See, e.g., Plains Commerce Bank v. Long Family Land & Cattle Co., 554
U.S. 316, 320-23 (2008) (contract and other claims arising out of sale of non-Indian fee
land within reservation); Hicks, 533 U.S. at 356-57 (tort and civil rights claims arising
out of search pursuant to state-issued warrant on tribal lands within reservation); Strate
v. A-1 Contractors, 520 U.S. 438, 442 (1997) (tort claim arising out of accident on state
highway within reservation).
127
642 F.3d 802 (9th Cir. 2011).
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lands within a reservation to a non-Indian corporation owned by a non-Indian.128 A
federal district court determined that the tribal court had jurisdiction over the corporation
under the “consensual relationship” Montana exception but rejected its assertion of
jurisdiction over the owner personally.129
The Ninth Circuit reversed and held that the district court had “appl[ied]
Montana unnecessarily.”130 It noted that “the Supreme Court has on only one occasion
established an exception to the general rule that Montana does not apply to jurisdictional
questions arising from the tribe’s authority to exclude non-Indians from tribal land.”131
That sole exception, Nevada v. Hicks, concerned “tribal-court jurisdiction over state
officers enforcing state law,” who are “a narrow category of outsiders” whose liability
is of special state interest.132 And even Hicks “explicitly recognized that in some cases,
land ownership ‘may sometimes be a dispositive factor’ in establishing a tribal court’s
regulatory jurisdiction over non-Indians.”133 Thus, the Water Wheel court concluded,
“Supreme Court and Ninth Circuit precedent, as well as the principle that only Congress
may limit a tribe’s sovereign authority,” all counseled in favor of applying Montana to
jurisdictional questions arising on tribal land “only when the specific concerns at issue
128
See id. at 804-07.
129
See Water Wheel Camp Recreational Area, Inc. v. LaRance, No. 08-0474,
2009 WL 3089216, at *13 (D. Ariz. Sept. 23, 2009).
130
Water Wheel Camp Recreational Area, Inc., 642 F.3d at 807 n.4.
131
Id. at 813.
132
Id. (quoting Nevada v. Hicks, 533 U.S. 353, 358 n.2, 371 (2001)).
133
Id. (quoting Hicks, 533 U.S. at 360).
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in [Hicks] exist.”134 Because the lease dispute in Water Wheel did not involve state law
enforcement, “Montana [did] not apply to this case.”135
Water Wheel warned against the rote expansion of Montana to cases that
arise on tribal land and thus are closely tied to the territorial basis of inherent tribal
sovereignty.136 The same care must be paid when tribal courts claim jurisdiction over
matters that are closely tied to the membership basis of inherent tribal sovereignty. As
discussed in Part IV.B, supra, child support is a pillar of domestic relations and is
directly related to the well-being of the next generation of tribal members. Central
Council does not claim general jurisdiction over nonmember parents, but rather asserts
specific jurisdiction to adjudicate child support matters arising out of a parent’s
obligations to his or her tribal child, whose membership is the basis of inherent tribal
134
Id.
135
Id. at 816; see also id. at 813 (“[Applying Montana] would impermissibly
broaden Montana’s scope beyond what any precedent requires and restrain tribal
sovereign authority despite Congress’s clearly stated federal interest in promoting tribal
self-government.”).
136
See id. at 812 n.7 (“Further bolstering our conclusion that the tribe has
regulatory jurisdiction is the fact that this is an action to evict non-Indians who have
violated their conditions of entry and trespassed on tribal land, directly implicating the
tribe’s sovereign interest in managing its own lands.”); see also Attorney’s Process &
Investigation Servs., Inc. v. Sac & Fox Tribe of Miss. in Iowa, 609 F.3d 927, 940 (8th
Cir. 2010) (“Tribal civil authority is at its zenith when the tribe seeks to enforce
regulations stemming from its traditional powers as a landowner.”); cf. Montana v.
United States, 450 U.S. 544, 557 (1981) (“The Court of Appeals held that the Tribe may
prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by
the United States in trust for the Tribe, and with this holding we can readily agree. We
also agree with the Court of Appeals that if the Tribe permits nonmembers to fish or hunt
on such lands, it may condition their entry by charging a fee or establishing bag and creel
limits.” (citation omitted)).
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sovereignty. The jurisdiction claimed is thus intimately tied to the identified basis of
inherent tribal sovereignty. Montana does not apply to this case.
2. An alternative analysis under the Montana exceptions would
also allow a tribe to exercise jurisdiction.
Even if Montana did apply, Central Council’s exercise of subject matter
jurisdiction over nonmember parents would fit within either of its two exceptions. The
first exception provides that “[a] tribe may regulate, 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.”137
This “consensual relationship exception requires that the tax or regulation imposed by
the Indian tribe have a nexus to the consensual relationship itself.”138 The “consent may
be established ‘expressly or by [the nonmember’s] actions.’ ”139
Contrary to the State’s argument, even in territory-based sovereignty cases
the exception applies to more than just business relationships. As described in
Montana it encompasses “other arrangements,”140 which, as the Supreme Court later
clarified in Hicks, refer to “private consensual relationship[s].”141 In Smith v. Salish
Kootenai College the Ninth Circuit, sitting en banc, recognized that the exception can
137
Montana, 450 U.S. at 565.
138
Atkinson Trading Co. v. Shirley, 532 U.S. 645, 656 (2001).
139
Water Wheel, 642 F.3d at 818 (alteration in original) (quoting Plains
Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316, 337 (2008)).
140
Montana, 450 U.S. at 565.
141
533 U.S. 353, 359 n.3 (2001).
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reach consensual bonds that do not involve a business relationship.142 The Smith court
expressly rejected the suggestion that the first Montana exception is limited to
commercial arrangements and instead explained that, in its view, “the Court’s list in
Montana is illustrative rather than exclusive.”143 And in Water Wheel the Ninth Circuit
further explained that tribal court jurisdiction under the first Montana exception
“depends on what non-Indians ‘reasonably’ should ‘anticipate’ from their dealings with
a tribe or tribal members on a reservation.”144
A relationship that leads to the birth of a child is one that has significant
consequences and obligations. When two people bring a child into being each should
reasonably anticipate that they will be required to care for the child and perhaps may
need to turn to a court to establish the precise rights and responsibilities associated with
the resulting family relationship. This may require litigating in a court that is tied to the
child but with which the parent has more limited contacts.145 As applied to the broad
category of nonmember parents, such events are, in at least some circumstances,
142
434 F.3d 1127, 1140-41 (9th Cir. 2006) (en banc).
143
Id. at 1137 n.4.
144
Water Wheel, 642 F.3d at 817 (quoting Plains Commerce, 554 U.S. at 338);
see also id. at 818 (“We are to consider the circumstances and whether under those
circumstances the non-Indian defendant should have reasonably anticipated that his
interactions might trigger tribal authority.”).
145
See, e.g., AS 25.30.300(a)(1) (courts in a child’s home state have
jurisdiction to make initial child custody determinations); AS 25.25.201(6) (courts may
exercise personal jurisdiction over nonresidents in child support matters if, among other
bases, the nonresident “engaged in sexual intercourse in this state and the child may have
been conceived by that act of intercourse”); Parker v. State, Dep’t of Revenue, Child
Support Enf’t Div., ex rel. R.A.W., 960 P.2d 586, 588 (Alaska 1998) (upholding state
court personal jurisdiction to establish paternity and child support obligations of a
nonresident who conceived a child with an Alaska resident in Alaska).
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reasonably foreseeable.146 In the context of membership-based inherent tribal
sovereignty, relationships that give rise to the birth of a child fit within the first Montana
exception.
The second Montana exception provides that “[a] tribe may also retain
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.”147 “The
conduct must do more than injure the tribe, it must ‘imperil the subsistence’ of the tribal
community.”148
Although the United States Supreme Court “has never found the second
exception applicable,”149 the lower federal courts have. In Elliott v. White Mountain
Apache Tribal Court the Ninth Circuit held that a tribal court did not plainly lack
jurisdiction over a civil action that the tribe brought against a nonmember arising out of
a fire she had set on tribal land within the tribe’s reservation.150 The court decided that
the tribal court’s claim to jurisdiction under the second Montana exception was
“compelling . . . particularly in light of the result of the alleged violations of those
regulations in this very case: the destruction of millions of dollars of the tribe’s natural
146
As discussed in Part IV.D, infra, our decision in this appeal is only
concerned with tribal court subject matter jurisdiction over nonmember parents as a
category. We offer no opinion on the proper contours of personal jurisdiction.
147
Montana v. United States, 450 U.S. 544, 566 (1981).
148
Plains Commerce, 554 U.S. at 341 (quoting Montana, 450 U.S. at 566).
149
CONFERENCE OF W. ATT’YS GEN., AMERICAN INDIAN LAW DESKBOOK 209
(Clay Smith ed., 4th ed. 2008).
150
See 566 F.3d 842, 844-45 (9th Cir. 2009).
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resources.”151 The Eighth Circuit, in Attorney’s Process & Investigation Services, Inc.
v. Sac & Fox Tribe of Mississippi in Iowa, similarly looked to the magnitude of the
alleged violation in holding that tort actions arising from an attempted physical takeover
of a tribal casino fit within the second Montana exception.152 And in Water Wheel the
Ninth Circuit held that even if Montana applied, the fact that “the commercial dealings
between the tribe and [the non-Indian owner] involved the use of tribal land, one of the
tribe’s most valuable assets,” would fit the action within the second
Montana exception.153
In light of these precedents we have no difficulty holding that the
adjudication of child support obligations owed to tribal children falls within the second
Montana exception. Congress has explicitly found “that there is no resource that is more
vital to the continued existence and integrity of Indian tribes than their children.”154 And
as the superior court correctly recognized, “[e]nsuring that tribal children are supported
by their noncustodial parents may be the same thing as ensuring that those children are
fed, clothed, and sheltered. The future of a tribe — like that of any society — requires
no less.” In light of federal precedent that recognizes that serious damage to territorial
resources fits within the second Montana exception when a tribe’s inherent sovereignty
is based on territory, the serious potential for damage to the next generation of tribal
members posed by a tribe’s inability to administer parental financial support of member
151
Id. at 850.
152
See 609 F.3d 927, 939 (8th Cir. 2010).
153
Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802, 818
(9th Cir. 2011).
154
25 U.S.C. § 1901(3) (2012).
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or member-eligible children brings the power to set nonmember parents’ child support
obligations within the retained powers of membership-based inherent tribal sovereignty.
In addition to complying with federal judicial precedent, our recognition
of Central Council’s jurisdiction over nonmember parents in the child support realm also
complies with the federal executive branch’s determinations. As discussed above, the
Secretary of the Department of Health and Human Services had to approve Central
Council’s application to make the Tribal Child Support Unit a Tribal IV-D program, and
by federal regulation that plan had to include “a description of the population subject to
the jurisdiction of the Tribal court or administrative agency for child support
enforcement purposes.”155 Central Council’s application asserted jurisdiction on, among
other things, the basis of “sexual conduct which results in the paternity of a [Central
Council] child and the corresponding obligation to provide for the child.” By approving
Central Council’s application, the Secretary implicitly recognized that tribal courts’
assertion of subject matter jurisdiction over nonmember parents complied with the
federal statutory and regulatory requirements for Tribal IV-D programs.
The holding we announce today comports with our previous decisions on
the inherent, non-territorial subject matter jurisdiction of tribal courts. In John I we held
that “[a] tribe’s inherent sovereignty to adjudicate internal domestic custody matters
depends on the membership or eligibility for membership of the child.”156 Whether the
children whose custody was at issue were in fact eligible for tribal membership was
contested, and we determined that their eligibility was “a critical fact that must be
155
45 C.F.R. § 309.70 (2015).
156
982 P.2d 738, 759 (Alaska 1999).
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determined by the superior court on remand.”157 On remand, the superior court
“concluded that the children were eligible for membership.” In our view, the superior
court “correctly determined that [the tribe] had subject matter jurisdiction.”158
Our “focus on the tribal affiliation of the children”159 in John I did not
reflect any confusion over the membership status of the parents. To the contrary, we
repeatedly noted that “John is not a member of Northway Village.”160 We also noted that
John “consented to Northway’s jurisdiction.”161 Our recognition of this fact was critical
because “subject matter jurisdiction is a threshold determination and prerequisite for a
court to hear a case;”162 it “cannot be waived” by a party’s consent.163 If the subject
matter jurisdiction of a tribal court to hear a custody proceeding turned on the tribal
affiliation of both parents rather than the child, the issue was squarely before us in
John I, and we failed to fulfill our duty as a court to raise the issue ourselves.164 That is
not what happened. Instead, we recognized in John I that a parent’s membership status
157
Id.158
John II, 30 P.3d 68, 73 (Alaska 2001).
159
John I, 982 P.2d at 759.
160
Id.; see also id. at 743 (“Anita John, the children’s mother and a member
of Mentasta Village, consented to Northway’s jurisdiction.”).
161
Id. at 743.
162
Hawkins v. Attatayuk, 322 P.3d 891, 894 (Alaska 2014).
163
Id. (quoting Robertson v. Riplett, 194 P.3d 382, 386 (Alaska 2008)).
164
See id. at 894-95 (“The issue of subject matter jurisdiction ‘may be raised
at any stage of the litigation and if noticed must be raised by the court if not raised by
one of the parties.’ ” (quoting Hydaburg Coop. Ass’n v. Hydaburg Fisheries, 925 P.2d
246, 248 (Alaska 1996))).
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does not limit the tribal court’s subject matter jurisdiction over the custody of tribal
children. In both custody matters like that before us in John I and the child support
matters like that before us today, tribal courts’ inherent, non-territorial subject matter
jurisdiction “depends on the membership or eligibility for membership of the child.”165
Federal courts that have examined whether nonmember parents fall within
tribal courts’ inherent, non-territorial subject matter jurisdiction have reached the same
conclusion. In Kaltag Tribal Council v. Jackson, the federal district court addressed the
argument that a tribe’s inherent sovereignty only extended to domestic disputes in which
all parties are members of the tribe.166 It rejected that argument, and instead held that “it
is the membership of the child that is controlling, not the membership of the individual
parents.”167 The Ninth Circuit affirmed,168 and we reach the same conclusion in today’s
opinion.
“We have previously emphasized respect for tribal courts, and this respect
must inform our analysis.”169 We are sympathetic to the concerns that nonmember
parents may have about contesting their child support rights and obligations in a court
system that may be less familiar to them than the state courts. But tribal courts that take
on this responsibility share the goals of state courts and parents everywhere: They are,
as Central Council’s child support enforcement agency states in the first sentence of its
governing policy guide, “motivated and dedicated to bettering the future of our children.”
165
John I, 982 P.2d at 759.
166
No. 3:06–cv–211, 2008 WL 9434481 (D. Alaska Feb. 22, 2008), aff’d, 344
F. App’x 324 (9th Cir. 2009).
167
Id. at *6.
168
Kaltag Tribal Council v. Jackson, 344 F. App’x 324 (9th Cir. 2009).
169
Simmonds v. Parks, 329 P.3d 995, 1011 (Alaska 2014).
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And what was true in 1999, when John I was decided, remains true today: “Recognizing
the ability and power of tribes to resolve internal disputes in their own forums, while
preserving the right of access to state courts, can only help in the administration of justice
for all.”170
D. This Appeal Does Not Present Questions Of Personal Jurisdiction.
The superior court’s order granting Central Council summary judgment
discussed the possibility that in some cases, “the exercise of [personal] jurisdiction by
the tribal court may well violate due process,” citing the United States Supreme Court’s
decision in Kulko v. Superior Court.171 However, it found it unnecessary “to decide the
precise outer limits of the [tribal] court’s jurisdiction,” and the declaratory judgment and
permanent injunction it issued did not address questions of personal jurisdiction. Both
Central Council and the State submitted that these issues should be left “for decision in
future cases.” We agree that the question whether a tribal court exercising inherent, non-
territorial subject matter jurisdiction has personal jurisdiction over the parties whose
rights and obligations it adjudicates should be decided in cases presenting concrete
factual records and a full opportunity to develop the factual and legal arguments.
V. CONCLUSION
The superior court’s order is AFFIRMED.
170
982 P.2d at 760.
171
436 U.S. 84, 91-92 (1978).
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WINFREE, Justice, with whom STOWERS, Justice, joins, concurring in part.
The superior court made two legal rulings underlying the declaratory and
injunctive relief entered in favor of the Central Council of Tlingit and Haida Indian
Tribes of Alaska (the Tribe). First, relying on our seminal holding in John v. Baker that
Alaska tribes retained non-territorial-based inherent sovereign authority to adjudicate
custody disputes over children who are tribal members or eligible for tribal membership,1
it ruled that this inherent sovereign authority encompassed adjudication of child support
disputes over tribal children even if custody were not in dispute. Second, it concluded
that with respect to child support orders issued by the Tribe, the State of Alaska was
required to comply with the Uniform Interstate Family Support Act (UIFSA) and related
federal and state regulations. Today the court affirms those legal rulings and the
associated injunctive relief, and I join that part of its decision.
But the court unnecessarily moves further and reaches out to provide an
advisory opinion2 on yet another legal issue: whether a tribal court with non-territorial­
based inherent sovereign authority to adjudicate matters involving tribal children
necessarily has adjudicatory authority (subject to some unstated personal jurisdiction
limitations) over non-tribal-member parents. This issue is not necessary to the decision
before us, there is no specific controversy in this case necessitating a decision on the
issue, there is no party in this case truly advocating for the interests of non-member
1
982 P.2d 738, 748-49 (Alaska 1999).
2
Cf. Laverty v. Alaska R.R. Corp., 13 P.3d 725, 729 (Alaska 2000) (noting
Alaska’s Declaratory Judgment Act (AS 22.10.020(g)) does “not open the door for
hypothetical adjudications [or] advisory opinions”).
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parents on the issue, and neither the Tribe nor the United States considered the issue
worthy of significant briefing; I therefore do not join the court’s advisory opinion.3
I start with the basic proposition that this case does not involve an actual
child support dispute between the Tribe and a non-member parent based on an allegation
that the Tribe lacked adjudicatory authority over the parent. This case involves the
Tribe’s demand that the State comply with UIFSA in connection with the Tribe’s child
support orders. The superior court recognized that under its ruling a tribal court “could
claim jurisdiction” to enter a child support order against a non-member parent, but
believed personal jurisdiction considerations would define the contours of a tribal court’s
authority and that further refinement was unnecessary at this time.
On appeal the State continues to argue that the Tribe does not have
adjudicatory authority over non-member parents. The Tribe and the United States
respond that this case does not raise any real dispute about tribal court adjudicatory
authority over non-member parents and that the potential involvement of non-member
parents in some cases does not divest the Tribe of its otherwise inherent sovereign
authority to adjudicate child support for tribal children. I agree with the Tribe and the
United States. And I find it ironic that they — albeit backhandedly — are willing to give
non-member parents a future opportunity to be heard on the Tribe’s adjudicatory
authority while the court is so anxious to decide the issue today without ever hearing
from a non-member parent.
3
If today’s decision is not dictum, then it seems clear — at least under the
court’s interpretation of federal law — that whenever a tribal court has adjudicatory
authority over a tribal or tribal-eligible child it automatically has adjudicatory authority
over the child’s non-member parent in any matter involving the child without regard to,
or a required nexus with, Indian country.
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This case comes to us much like State v. Native Village of Tanana,4
involving the Indian Child Welfare Act (ICWA).5 In that case we concluded that
federally recognized Alaska Native tribes that had not reassumed exclusive adjudicatory
jurisdiction still have concurrent jurisdiction to initiate ICWA-defined child custody
proceedings — both inside and outside of Indian country — and are entitled to all the
rights and privileges of Indian tribes under ICWA, including full faith and credit with
respect to their ICWA-defined child custody orders.6 But with an appropriate exercise
of judicial restraint, we rejected the State’s entreaty to more particularly define the
contours of tribes’ adjudicatory jurisdiction, including their adjudicatory authority over
Indian children’s7 non-member parents:
The nature and extent of tribal jurisdiction in any particular
case will depend upon a number of factors, including but not
limited to: (1) the extent of the federal recognition of a
particular tribe as a sovereign; (2) the extent of the tribe’s
authority under its organic laws; (3) the tribe’s delegation of
authority to its tribal court; and (4) the proper exercise of
subject matter and personal jurisdiction. Among the many
issues we are not deciding today are: . . . (2) the extent of
tribal jurisdiction over non-member parents of Indian
children; and (3) the extent of tribal jurisdiction over Indian
children or member parents who have limited or no contact
with the tribe. We therefore do not need to address the varied
hypothetical situations posited by the State as creating
4
249 P.3d 734 (Alaska 2011).
5
25 U.S.C. §§ 1901-1963 (2012).
6
Native Vill. of Tanana, 249 P.3d at 751.
7
See 25 U.S.C. § 1903(4) (defining “Indian child”).
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difficult jurisdictional questions — we leave those for later
determinations under specific factual circumstances.[8]
I see no reason to dispense with this judicial restraint today.
The context of this case — a political jurisdictional battle between two
sovereigns — provides an additional reason for judicial restraint. As outlined in Native
Village of Tanana, the State’s position on the nature and extent of tribal sovereignty has
waxed and waned depending upon the politics of the day.9 But jurisdictional battles
between the State and Alaska Native tribes are inter-governmental and generally
intended to delineate exclusive and concurrent jurisdiction boundaries and flesh out
related concepts like full faith and credit for tribal court orders. In those battles — such
as in this case and in Native Village of Tanana — the State and the tribes are the primary
interested parties. Here, for example, the State’s argument that the Tribe lacked any
adjudicatory authority over non-members (with or without consent) to enter child support
orders was not out of a concern about non-members forced to appear in tribal courts
without consent, but rather out of a concern for its own budget — it simply did not want
to have to enforce any of the Tribe’s child support orders — and as a result of the
litigation the State now will, as a general matter, have to enforce the Tribe’s child
support orders.
On the other hand, a specific non-member parent’s objection to a tribal
court’s adjudicatory authority to issue a child support order would place the issue in a
very different factual and legal context. It is not so clear to me that the State would be
an interested party to that specific dispute although, like the United States often does in
8
Native Vill. of Tanana, 249 P.3d at 751-52 (emphasis added). If today’s
decision is not dictum, then it seems clear the court now has answered the noted issue left
open in that case.
9
Id. at 744-47.
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Indian jurisdictional disputes, the State could participate as an amicus curiae. And given
Alaska’s unique Indian law environment — where inherent sovereign authority is for the
most part untethered to Indian country — existing U.S. Supreme Court precedents seem
an imperfect roadmap for determining whether a tribal court has such adjudicatory
authority.10
Perhaps this distinction can be made more clear with the following
comments and questions. The choice to seek U.S. Supreme Court review of today’s
decision belongs solely to the State, not to a non-member parent of a tribal child. That
decision — like all previous State decisions regarding tribal sovereignty — will be
primarily a political decision, based on how the State wishes to co-exist with sovereign
tribes within its boundaries. Who in this case represents the legal interests of
non-member parents of tribal children? No one. I do not find this particularly satisfying
for a court that prides itself on procedural fairness.
10
With this in mind I make three casual observations about the court’s
decision. First, I am dubious of any analysis about tribal court adjudicatory authority
over non-members that begins by rejecting Montana v. United States, 450 U.S. 544(1981), as the fundamental lens for the analysis. Second, the court conspicuously avoids
discussing substantial case law indicating that the Montana exceptions to the
presumption that tribal courts do not have adjudicatory authority over non-members
relate only to non-member conduct within reservations, which are virtually non-existent
in Alaska. See, e.g., Plains Commerce Bank v. Long Family Land &Cattle Co., 554 U.S.
316, 327-35 (2008) (explaining Montana’s general principle’s scope, specifying that
“Montana and its progeny permit tribal regulation of non-member conduct inside the
reservation that implicates the tribe’s sovereign interests”). Finally, under a Montana
exception a non-member may consent to tribal court jurisdiction even if the tribal court
otherwise would have no adjudicatory authority over the non-member. 450 U.S. at 565.
It is difficult to understand why the non-member parent’s consent to tribal court
adjudicatory authority in John v. Baker, 982 P.2d 738, 743 (Alaska 1999), now — in
retrospect — demonstrates that tribal courts have adjudicatory authority over all non­
member parents of tribal children regardless of consent.
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In my view whether tribal courts have adjudicatory authority over non­
member parents of tribal or tribal-eligible children with respect to matters involving
those children — when those matters arise untethered to Indian country — is a matter
best left for a day when we actually have before us a dispute between a tribe and a non­
member parent. Although the court’s ultimate conclusion certainly is not implausible,11
I do not join it or its underlying analysis.
11
Cf. Simmonds v. Parks, 329 P.3d 995, 1017-22 (Alaska 2014) (concluding
tribal court’s non-territorial-based claim of adjudicatory authority to terminate non­
member parent’s parental rights to tribal child was “plausible” so that non-member
parent was required to exhaust tribal court remedies before seeking state court relief).
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