Tanana v. State and a review & analysis of Attorney General Opinion 2004-1

1. Tanana v. State and a review & analysis of Attorney General Opinion 2004-1 • Shamelessly recycled for the Alaska Bar Association 2006 Native Law Update, April 27, 2006, in Anchorage

2. Litigation • Native Village of Tanana et al. v. State of Alaska, 3AN-04-12194, challenges AG Opinion No. 2004-0001. • State’s motion to dismiss based on ripeness and sovereign immunity was denied; State petitioned for review, solely on the issue of ripeness, in November of 2005. Decision whether to accept review or not is still pending as of April 2006.

3. The main point • The 2004 opinion takes positions that are at odds with the previous 2002 Attorney General opinion on this subject, and takes positions on several issues that are being vehemently opposed by tribal advocates. This should not be read as an opinion that recapitulates well-established law or settles issues; practitioners should not assume that state or federal courts will unquestioningly accept its conclusions. • This presentation touches the “basics” of tribal jurisdiction, the statutory context, the historical context, and four specific problems.

4. Basics of Tribal Jurisdiction “Tribes retain their sovereign powers to regulate internal domestic affairs unless Congress specifically withdraws their authority to act.” Domestic relations authority is within the scope of “powers of Indian tribes [which] are, in general, inherent powers of a limited sovereignty which has never been extinguished.” “[I]nternal functions involving tribal membership and domestic affairs lie within a tribe's retained inherent sovereign powers.” “[A] tribe has a strong interest in ‘preserving and protecting the Indian family as the wellspring of its own future.’” Because “adjudication of child custody disputes over member children is necessary ‘to protect tribal self-government or to control internal relations,’ [Alaska’s] tribal courts require no express congressional delegation of the right to determine custody of tribal children.”

5. ICWA child custody proceedings • (1) "child custody proceedings" shall mean and include -- • (i) "foster care placement" which shall mean any action removing an Indian child from its parent or Indian custodian for temporary placement in a foster home or institution or the home of a guardian or conservator where the parent or Indian custodian cannot have the child returned upon demand, but where parental rights have not been terminated; • (ii) "termination of parental rights" which shall mean any action resulting in the termination of the parent-child relationship; • (iii) "preadoptive placement" which shall mean the permanent placement of an Indian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement; and • (iv) "adoptive placement" which shall mean the permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption. • Such term or terms shall not include a placement based upon an act which, if committed by an adult, would be deemed a crime or upon an award, in a divorce proceeding, of custody to one of the parents.

6. ICWA Reservation • "reservation" means Indian country as defined in section 1151 of Title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation;

7. Aside: classical reservations, Indian country, and ICWA reservations Reservations Dependent Indian communities Allotments

8. ICWA 1911(b) • (b) Transfer of proceedings; declination by tribal court. In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, that such transfer shall be subject to declination by the tribal court of such tribe.

9. ICWA 1918(a) • § 1918.  Reassumption of jurisdiction over child custody proceedings (a) Petition; suitable plan; approval by Secretary. Any Indian tribe which became subject to State jurisdiction pursuant to the provisions of the Act of August 15, 1953 (67 Stat. 588), as amended by title IV of the Act of April 11, 1968 (82 Stat. 73, 78), or pursuant to any other Federal law, may reassume jurisdiction over child custody proceedings. Before any Indian tribe may reassume jurisdiction over Indian child custody proceedings, such tribe shall present to the Secretary for approval a petition to reassume such jurisdiction which includes a suitable plan to exercise such jurisdiction.

10. Historical context: 1986 • In 1986, Alaska Supreme Court issued two ICWA opinions within eight weeks on tribal court jurisdiction. • J.M. vacated a state court decree terminating parental rights and instructed the superior court to dismiss the case so that the Kaltag Tribal Court in which the case had originally been filed could handle it. • Nenana held Alaska state courts could not transfer cases under 1911(b) to Alaska tribal courts which had not petitioned for re-assumption of jurisdiction under ICWA 1918. • (Note that the J.M. case was not a 1911(b) transfer. Case had started in tribal court, then state court case was brought so that foster parents could receive state foster care assistance.)

11. 1987-88 • 1987:1st attempt to get Alaska Supreme Court to overrule Nenana fails, in K.E., another 1911(b) transfer case. • 1988:Venetieadoption case (Alaska Fed Dist 1988) extends Nenana outside the 1911(b) transfer context to hold that Alaska Tribal Courts (Venetie and Fort Yukon) cannot grant adoptions. (Note this is a separate case from Venetie tax case.) • 1988: Native Village of Stevens v. Alaska Management & Planning (Alaska Supreme) goes further, holding there are no federally recognized tribes in Alaska outside Metlakatla (non-ICWA sovereign immunity case).

12. 1991 • Venetie adoption case (9th Cir.) overrules fed district court; holds tribe need not file petition to reassume jurisdiction under 25 USC 1918 to grant adoptions of tribal children; if Native Villages of Venetie and Fort Yukon can demonstrate they are modern-day successors to sovereign historical bands, they have same rights and responsibilities as sovereign bands in the lower 48; case remanded to district court for determination of tribal status.

13. 1992 • 2nd attempt to get Alaska Supreme Court to overrule Nenana fails in F.P., yet another 1911(b) transfer case, in which the opinionreaffirms Nenana, takes issues with 9th Circuit reasoning in Venetie, and rules that, since Alaska Supreme Court’s 1988 opinion in Native Village of Stevens v. Alaska Management & Planning held against tribal status as a matter of law, the 9th Cir’s premise (that villages may be tribes) is incorrect.

14. 1993 • “Sansonetti opinion” issues in January, concluding that tribes exist in Alaska (delineation of which villages are tribes to come later), but that ANCSA lands are not Indian country. • List of federally recognized tribes in Alaska published in October.

15. 1994 • Federal district court, having consolidated the Venetie adoption and Venetietax cases for a week-long trial, issues its tribal recognition opinion that Venetie is a federally recognized tribe. Without having resolved the “Indian country” issue, the court re-bifurcates the Venetie adoption and Venetie tax cases since “Indian country” is relevant only to tax, not adoption. • Congress enacts Federally Recognized Tribe List Act, effectively endorsing the annual lists.

16. 1995 • Federal District court issues opinion in Fort Yukon portion of Venetie adoption case: holds that 1993 list constitutes federal recognition, but whether that recognition existed prior to 1993 is an open question. • Federal District court issues opinion in Venetie tax case: former Venetie reserve conveyed under ANCSA is not Indian country, so Venetie cannot impose tax.

17. 1996 • 1996: Parties stipulate in Venetie adoption case that Fort Yukon could prove at trial it is federally recognized; ends the adoption case. • 1996: Federal District court issues opinion in Tyonek, an ancient case not involving tribal jurisdiction but rather sovereign immunity. This opinion resolves the question left open in federal district court’s 1995 Fort Yukon ruling, resolving question of pre-1993 status: list is “a recognition of that which has existed in the past.”

18. 1997-1998 • 1997: 9th Circuit reverses federal district court in Venetie tax case, rules that Venetie does occupy Indian country and can impose tax. • 1998: U.S. Supreme Court reverses 9th Circuit in Venetie tax case, rules ANCSA lands are not Indian country. Leaves open possibility of Native allotments being Indian country.

19. 1999 • Alaska Supreme Court issues John v. Baker I, holding (1) villages on 1993 list are federally recognized tribes; (2) Alaska tribes have inherent jurisdiction over internal domestic relations of tribal members, regardless of whether they occupy Indian country; (3) state courts should apply comity framework in determining whether to defer to tribal courts. Does not overrule Nenana because this is an interparental custody dispute, not an ICWA child custody proceeding. Does not interpret P.L. 280 because there is no showing that case arose within “Indian country.”

20. 2001-2002 • 2001: Alaska Supreme Court issues CRH, overruling the Nenana line of cases and holding that 1911(b) transfer does not require petition to re-assume jurisdiction. (Same day, Court issues John v. Baker II, holding that Alaska courts should presumptively grant comity, and that superior court’s reasons for denying comity were insufficient in this case.) • 2002: AG opinion of 3/29/02 interpreting CRH

21. 2003-2004 • 2003: Alaska Supreme Court issues Selawik, denying comity where tribal court deprives litigants of due process. • 2004: Alaska Supreme Court issues Runyon, recognizing sovereign immunity of Alaska Native Villages, refusing to extend immunity to AVCP, declining to revisit interpretation of List and List Act in John v. Baker. • 2004: AG issues new opinion of 10/1/04 re-interpreting Nenana and CRH

22. Main points of 2004 AG opinion • Alaska state courts have exclusive jurisdiction over Alaska Native child custody proceedings unless Interior Dept has approved a 1918 petition, or state court has transferred a case under 1911(b). • Tribes that have not petitioned for reassumption have no authority to initiate child custody proceedings in tribal court.

23. Analysis from the opinion • “In Native Village of Nenana v. DHSS, the Alaska Supreme Court … held that Public Law 280 effectively divested tribal jurisdiction and granted state courts exclusive jurisdiction over matters involving Indian children. … Almost ten years later, in C.R.H., the Alaska Supreme Court was again asked to abandon Nenana and find that Alaska Native villages affected by P.L. 280 retain concurrent jurisdiction over their children. The court chose to resolve the case on other grounds, leaving Nenana for the most part intact. • “C.R.H. did make one significant change to Nenana. The court held that an Alaska Native village may petition a state superior court under 25 U.S.C. 1911(b) for transfer of a case to the village’s tribal court even if the tribe has not successfully petitioned the Department of the Interior for reassumption of jurisdiction.”

24. 1st problem • So, in some respects, the question examined by the opinion is how much of Nenana may have survived its overruling in C.R.H. • And, to address that, one first has to ask – how could Nenana in fact have had a greater scope than C.R.H. in the first place? Both were rulings on the issue of whether state courts could validly transfer child protection proceedings to Alaska tribal courts under 1911(b) in the absence of a 1918 petition to reassume jurisdiction. • Is it the case that, as the AG opinion states, “in Nenana, the Alaska Supreme Court … held that Public Law 280 effectively divested tribal jurisdiction and granted state courts exclusive jurisdiction over matters involving Indian children”?

25. What the court said • The passage from Nenana on which the opinion relies is: “Our reading of 25 U.S.C. 1918(a), indicates that Congress intended that Public Law 280 give certain states, including Alaska, exclusive jurisdiction over matters involving the custody of Indian children, and that those states exercise such jurisdiction until a particular tribe petitions to reassume jurisdiction over such matters, and the Secretary of the Interior approves tribe's petition.”

26. What the court also said • But the passage which the AG opinion overlooks is that in which the Court stated it was reaching its interpretation of ICWA 1911(b) “[r]egardless of whether Public Law 280 vests exclusive or concurrent jurisdiction in the applicable states,” because “prior to the Child Welfare Act, Indian tribes may not have had jurisdiction over custody proceedings in a section 1911(b) situation, i.e., where the child is domiciled off the reservation. … The referral jurisdiction provision may actually grant Indian tribes greater authority than they had prior to the Act. ” 722 P.2d at 221 (emphasis in original).

27. Aside: why might tribes have lacked jurisdiction in a 1911(b) situation prior to ICWA? • By definition, 1911(b) arises only where the child resides outside the reservation. (John v. Baker, holding that Indian country wasn’t necessary to (non-ICWA) child custody jurisdiction, was 13 years in the future.) Also, as the Ninth Circuit later noted in the Venetie adoption case, 1911(b) gives tribal courts more than just concurrent jurisdiction; it gives them the power to wrest state court cases away.

28. Two routes through Nenana • Thus, one line of reasoning relied on the premise that P.L. 280 vested exclusive jurisdiction in the state; the other line of reasoning was explicitly “regardless” of whether P.L. 280 vested exclusive jurisdiction in the state or not. • As such, Nenana’s discussion of P.L. 280 was not necessary to its ultimate conclusion, which was that a 1911(b) transfer of a child protection case from state court to tribal court would require Secretarial approval of a petition to re-assume jurisdiction under 25 U.S.C. 1918.

29. Two routes through Nenana ICWA ICWA P.L. 280 1911(b) transfer requires petition 1911(b) transfer requires petition

30. So that means … • Thus, it may be something of an overstatement to state that Nenana “held that Public Law 280 effectively divested tribal jurisdiction and granted state courts exclusive jurisdiction over matters involving Indian children.” Its opinion states that in obiter dictum, and “[d]ictum is not holding.” Joseph v. State, 26 P.3d 459, 468-69 (Alaska 2001).

31. Hasn’t the court itself characterized Nenana as a PL 280 case? • Yes. “This court interpreted P.L. 280 in Native Village of Nenana …” (C.R.H.) (But the court also said: “Nenana based its analysis primarily on the language of ICWA section 1918.”) • Parties assaulting Nenana wanted to make it a big target, and those seeking to hide behind it wanted to make it a big barrier. Both therefore characterized Nenana as having interpreted P.L. 280. • “The United States argues that our prior interpretation of P.L. 280 remains relevant even if Northway Village does not occupy Indian country because it would be contrary to established law to conclude that a tribal court had greater powers outside, rather than inside, of Indian country. … (John v. Baker I) • “Mr. Baker argues that this case arose on Indian country, and that Public Law 280, … which extends Alaska's jurisdiction over disputes arising on Indian country, deprives the Northway court of all jurisdiction. Because his brief offers virtually no discussion of the complex law governing this claim, this argument is waived for inadequate briefing.” (John v Baker II) • “Nikolai urges us to reconsider Nenana's interpretation of P.L. 280, and to hold that the Alaska Native tribes affected by P.L. 280 retain jurisdiction concurrent with that of the state. We need not reach this issue, however, because the jurisdiction claimed by Nikolai exists regardless of P.L. 280.” (C.R.H.)

32. Might these post-hoc characterizations make the dictum in Nenana into a holding? • Stay tuned! • The fact that the Court found that it did not have to reach the P.L. 280 issue in C.R.H. in order to interpret 25 USC 1911(b) underscores the fact that it did not have to do so in Nenana either. • Since Nenana, the Court has been careful to avoid unnecessary pronouncements about P.L. 280 (JvB I, CRH). If the Court is waiting for a case to arise from within Indian country, that could be a long wait, as there isn’t much Indian country post-Venetie. • The AG opinion, by extrapolating P.L. 280 into non-Indian country, may bring the Court face-to-face with this dilemma, but the Court may avoid that by reiterating that P.L. 280 has no effect outside Indian country.

33. If and when the Court has to face the PL 280 issue, what will it do? • Stay tuned! • “[T]he federal government and the vast majority of state and federal courts to consider the issue have agreed that tribes retain concurrent jurisdiction to enforce laws in Indian country.” • The Alaska Supreme Court may have signaled its willingness to reject the divestiture interpretation of P.L. 280 when it explained its reason for not reaching the issue in John v. Baker: • “It is true that, generally, Indian nations possess greater powers in Indian country than they do outside it. … Thus, the United States correctly notes in its brief that the recognition of Northway's jurisdiction creates a disjunction in Indian law jurisprudence. But this inconsistency does not create a justification to address issues that are not squarely before us.”

34. 2d problem: where is P.L. 280 operative? • “The United States Supreme Court's recent Venetie II decision suggests that P.L. 280, which grants states jurisdiction over disputes in Indian country, has limited application in Alaska because most Native land will not qualify for the definition of Indian country. By its very text, P.L. 280 applies only to Indian country. If Northway Village does not occupy Indian country, then our rulings interpreting P.L. 280 are not germane to this appeal.” (John v. Baker I) • “In John, we noted that P.L. 280 does not apply to those Alaska Native tribes that do not occupy Indian country.” (CRH)

35. 2nd conclusion: • Since PL 280 operates only within Indian country, then if it does divest tribes of jurisdiction as the AG opinion concludes, it does so only within Indian country – yet the opinion does not limit it to that geographic scope. This would seem to contradict the holdings in John v. Baker and CRH on this point.

36. 3rd problem: why a case cannot begin in tribal court • “Under Nenana and C.R.H., tribes in Alaska that have not reassumed jurisdiction have no authority to initiate child custody proceedings in tribal courts.” • That was not the ruling in either Nenana or C.R.H. Both rulings dealt with cases initiated in state court, with a request to transfer to tribal court. • There are several examples of state court recognition of cases that have started in tribal court.

37. Cases started in tribal court • J.M. (1986): child protection proceeding (i.e., ICWA child custody case) initiated in tribal court, later initiated in state court with approval of tribe’s chief, to pay for foster care expenses. Later (as termination was threatened), tribe claimed it had not waived jurisdiction. Alaska Supreme Court held that evidence was insufficient to prove that tribe had waived its jurisdiction. Case was remanded with instructions to send to Kaltag Tribal Court. • J.M. was not mentioned, let alone overruled, in Nenana.

38. Cases started in tribal court • Hernandez v Lambert (1998): adoption granted by tribal court. Natural mom had not disclosed natural dad. Later told individual he was dad; he filed state court suit for genetic tests. Superior court upheld adoption, found Nenana to be superseded by 1993 list. Putative biological father appealed. Alaska Supreme Court, without reaching issue of effect of list, upheld adoption based on state Bureau of Vital Statistics regulation and state adoption repose statute.

39. Cases started in tribal court • John v. Baker, 1999. Dad filed inter-parental custody suit in tribal court, then tried to file same suit in state court.

40. 3rd problem conclusion: • Alaska Supreme Court (and federal) case law indicates that cases, ICWA and non-ICWA, can be initiated in tribal court. • It is possible to try to argue that J.M. was implicitly overruled by Nenana (subsequently overruled by CRH), that Hernandez v. Lambert turned on state Bureau of Vital Statistics regulation, and JvB was non-ICWA case, but (1) the 2004 AG opinion makes no attempt to do so and (2) those are pretty weak arguments. • Plus there is the policy question – what policy of the state is furthered by refusing to recognize the ability of tribes to utilize their courts to protect tribal children when no state case is pending?

41. 4th problem: adoption cases • AG opinion: “Under Nenana as modified by C.R.H., the state retains exclusive jurisdiction over Alaska Native adoption proceedings unless a tribe has reassumed jurisdiction under ICWA § 1918. Full faith and credit should be given to adoption orders entered by Alaska tribal courts for tribes that have reassumed jurisdiction under ICWA.”

42. 4th problem: adoptions • Tribal court authority over adoptions has already been extensively litigated, in federal court in the Venetie and Fort Yukon adoption cases, and in state court, in Sitka Tribe v. State, Case No. 1SI-01-61 (1st Judicial District,2002). • In the state court case, there was a stipulation and order which read: “[C.R.H.] clarified significant aspects concerning jurisdiction in Indian Child Welfare Act cases, which include cases addressing the termination of parental rights and adoption. Under the court’s analysis in C.R.H., it can be concluded that the Sitka Tribe has jurisdiction over child custody cases arising under the Indian Child Welfare Act despite the facts that the Tribe has not petitioned for reassumption of jurisdiction over Indian child custody proceedings under 25 USC 1918 and did not acquire the case by transfer from state court. Furthermore, C.R.H. supports the conclusion that 25 USC 1918 does not affect the obligation of the state to give full faith and credit to the judicial proceedings of an Indian tribe applicable to Indian child custody proceedings covered by the Indian Child Welfare Act.”

43. 4th problem: adoptions • AG opinion implies that the cultural adoption regulation is the sole alternative to reassumption: “However, the state has long ratified Indian adoptions that occur under tribal custom as a matter of equity under state law. Nothing in C.R.H. or this opinion should be construed as changing this longstanding policy in any respect.” • Stipulation in Sitka v. State: “The procedures for recognizing adoptions under tribal custom in 7 AAC 05.700(b) do not limit State authority and do not curtail the State’s obligation to recognize Alaska Native tribal court adoptions that otherwise qualify for recognition under the Indian Child Welfare Act, 25 USC 1911(d), AS 25.23.160 and 7 AAC 05.700(a).”

44. A narrower approach? • Whatever the perceived problems were with the advice given in the 2002 memorandum, it seems it would have been possible to address those without writing a broad opinion taking the position that Alaska Native Villages are without power to protect tribal children from abuse or neglect. • For example, the 2002 opinion took the view that, if the DHSS receives a report of harm regarding a child it knows is already a ward of a tribal court, DHSS lacks authority even to investigate the report in the absence of a state/tribal agreement or the child is temporarily off-reservation. If this was perceived to be unduly limiting to state social worker responsibilities, it would have been possible to draft a narrower opinion to address that and other particular points. • By questioning the authority of tribes to initiate cases in tribal court to protect tribal children, the policy in fact leaves children at greater risk than before, contrary to state, tribal and federal interests.