State of Alaska v. Native Village of Tanana: Enhancing Tribal Power by Affirming Concurrent Tribal Jurisdiction to Initiate Icwa-defined Child Custody Proceedings, Both Inside and Outside of Indian Country

• Publication year: 2011

§ 28 Alaska L. Rev. 217. STATE OF ALASKA V. NATIVE VILLAGE OF TANANA: ENHANCING TRIBAL POWER BY AFFIRMING CONCURRENT TRIBAL JURISDICTION TO INITIATE ICWA-DEFINED CHILD CUSTODY PROCEEDINGS, BOTH INSIDE AND OUTSIDE OF INDIAN COUNTRY

Alaska Law Review
Volume 28, No. 2, December 2011
Cited: 28 Alaska L. Rev. 217

STATE OF ALASKA V. NATIVE VILLAGE OF TANANA: ENHANCING TRIBAL POWER BY AFFIRMING CONCURRENT TRIBAL JURISDICTION TO INITIATE ICWA-DEFINED CHILD CUSTODY PROCEEDINGS, BOTH INSIDE AND OUTSIDE OF INDIAN COUNTRY

Heather Kendall-Miller ^[*]

Abstract

This Article provides an overview of the significant cases that have defined state-tribal relations in Alaska as related to Indian child proceedings and further discusses various policies that have been implemented over time. After outlining these cases and shifting policies, the Article examines the current state of the law in Alaska with a focus on State v. Native Village of Tanana, which clarified confusion regarding the inherent jurisdiction held by federally recognized Alaska Native tribes to initiate the Indian Child Welfare Act (ICWA)-defined child custody proceedings. Finally, the Article discusses those jurisdictional questions left unresolved by Tanana to be decided at a later time under specific factual circumstances.

Introduction

There are 229 federally recognized Alaska Native tribes ^[1] in Alaska, including the Native Village of Tanana. ^[2] Most of the lands in and around these villages were conveyed under the Alaska Native Claims Settlement Act (ANCSA). ^[3] In Alaska v. Native Village of Venetie Tribal Government, ^[4] the United States Supreme Court held that such ANCSA lands do not constitute "Indian country" within the meaning of 18 U.S.C. §1151. ^[5] As a result, most of the land held by Alaska Native tribes is not within a "reservation" as that term is defined in ICWA. ^[6] Such tribes are, however, expressly included in ICWA's definition of an "Indian tribe," ^[7] and many operate their own tribal court systems, which typically carry a heavy docket of child-welfare cases. ^[8]

For many years the State of Alaska and Alaska Native tribes sought to work cooperatively in recognition of their shared jurisdiction over proceedings involving tribal children. ^[9] This cooperative effort was encouraged by the Alaska Supreme Court's decision in John v. Baker, ^[10] which held that Alaska tribes, by virtue of their inherent powers as sovereign nations, do possess non-territorial authority to resolve domestic disputes, and nothing in the ICWA or Public Law 280 ^[11] (P.L. 280) diminishes this inherent authority. ^[12] Then, in 2004, out of the blue, a new Attorney General abruptly reversed course and declared that no Alaska tribes possess any original jurisdiction over any children's proceedings absent affirmative reassumption of that jurisdiction pursuant to the petitioning process set forth in ICWA § 1918. ^[13] The Attorney General buttressed this position by relying on a previous ruling, Native Village of Nenana v. State, Department of Health and Social Services, ^[14] which held that an ICWA proceeding could not be transferred from a state court to a tribal court under ICWA § 1911(b) without the tribe first processing a § 1918 petition. ^[15] The court in Nenana further observed that a state's jurisdiction under P.L. 280 is "exclusive" over matters involving the custody of Indian children. ^[16]

In the wake of the new Attorney General opinion, the office of Children's Services (oCS) and Bureau of Vital Statistics (BVS) ceased their cooperative practices and adopted new policies to implement the turnabout 2004 opinion. ^[17] Because the State's actions directly jeopardized the integrity of virtually all tribal court proceedings in Alaska involving tribal children, along with tribal members and others who depend upon those proceedings, a lawsuit was brought to confirm that Alaska tribes possess inherent original jurisdiction to initiate child protection and adoption proceedings in their own tribal courts. In State v. Native Village of Tanana, ^[18] the Alaska Supreme Court held that Alaska tribes possess inherent sovereign authority to initiate proceedings in their tribal courts to protect their tribal children, including adoption and child-in-need-of-aid (CINA) type proceedings, and they may exercise that inherent authority without first petitioning the Secretary of the Interior under § 1918 of ICWA. ^[19] In so ruling, the court expressly overruled Nenana and acknowledged: [I]n the nearly 25 years since our Nenana decision, our view of p.L. 280's impact on tribal jurisdiction has become the minority view-other courts and commentators have instead concluded that p.L. 280 merely gives states concurrent jurisdiction with tribes in Indian country. What remains of Nenana must now be overruled. We adopt the view that p.L. 280 did not divest tribes of all jurisdiction under § 1911(a), but rather created concurrent jurisdiction with the State. ^[20]

With the express overruling of Nenana, the Tanana decision brings state law into conformity with federal pronouncements and removes any doubt that "Alaska Native tribes are entitled to all of the rights and privileges of Indian tribes under ICWA, including procedural safeguards imposed on states and § 1911(d) full faith and credit with respect to ICWA-defined child custody orders to the same extent as other states' and foreign orders." ^[21]

Between 2004 and the 2011 Tanana decision, the State of Alaska disputed the existence of concurrent tribal jurisdiction over domestic relations matters impacting the welfare of tribal children. ^[22] The State's position relied upon unsettled state decisional law from the 1980s, even though those decisions had been reconsidered in the years preceding the State's change of position in 2004. ^[23] This Article begins in Part I by discussing the two federal statutes that are of greatest relevance to Alaska's Indian child welfare jurisprudence and to the decision in Tanana. Then, in Parts II-IV the Article examines the history of confusion in Alaska surrounding questions of tribal jurisdiction over child custody matters. In Part V, the Article describes how Alaska's Attorney General changed its interpretation of the law and the effects of that change. With the historical context in place, the Article then explains the recent Tanana decision in Part VI and concludes by discussing remaining ambiguities in the law in Part VII.

I. Federal Statutes

A. The Indian Child Welfare Act

When Congress enacted ICWA in 1978, its goal was to establish federal standards that protect the interest of Indian children and ensure the stability and security of Indian tribes when Indian children are removed from their families. ^[24] It was Congress' intent that ICWA's provisions should "reflect the unique values of Indian culture." ^[25] Congress aimed to provide a framework to assist tribes with child and family service programs, not to strip tribes of their governance over child custody proceedings. ^[26]

When drafting ICWA, Congress noted that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." ^[27] Nevertheless, Congress found that non-tribal public and private agencies were breaking up Indian families by the often-unwarranted removal of their children at an alarmingly high rate. ^[28] Equally disturbing was the percentage of Indian children who were removed from their homes and placed in non-Indian foster and adoptive homes and institutions. ^[29] Congress also found that states, when exercising jurisdiction over Indian child custody proceedings, "have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families." ^[30]

Responding to these findings and to accomplish its goal, Congress established "tribal courts as the required or preferred forum for adjudication of Indian child custody proceedings." ^[31] ICWA defines "tribal court," in relevant part, as "a court with jurisdiction over child custody proceedings and which is . . . established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which is vested with authority over child custody proceedings." ^[32] Under ICWA, "child custody proceedings" include proceedings of foster care placement, termination of parental rights, pre-adoptive placement, and adoptive placement. ^[33] ICWA excludes child placements as a result of criminal behavior or divorce proceedings, ^[34] but generally it otherwise does not distinguish between voluntary and involuntary child custody proceedings. ^[35]

Establishing tribal courts as the preferred forum for Indian child custody proceedings, ICWA § 1911, titled "Indian Tribe Jurisdiction over Indian Child Custody proceedings," explicitly limits states' jurisdiction over Indian child custody proceedings. ^[36] First, unless jurisdiction is otherwise vested in a state, ICWA § 1911(a) grants tribal courts exclusive jurisdiction over "any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe." ^[37] Further, ICWA § 1911(a) also provides that tribal courts "retain exclusive jurisdiction over tribal court wards regardless of residence or domicile." ^[38] Although ICWA does not define the term "ward," the court in Tanana stated:

[T]he most

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