John v. Baker
| Decision Date | 08 September 1999 |
| Docket Number | No. S-8099.,S-8099. |
| Citation | 982 P.2d 738 |
| Parties | Anita JOHN, Appellant, v. John BAKER, Appellee. |
| Court | Alaska Supreme Court |
Andrew Harrington and Mark Regan, Alaska Legal Services Corporation, Fairbanks, for Appellant.
J. John Franich, Assistant Public Advocate, Fairbanks, Brant McGee, Public Advocate, Anchorage, and Deborah Niedermeyer, Fairbanks, for Appellee.
Harold N. Brown and Michael J. Walleri, Tanana Chiefs Conference, Inc., Fairbanks, for Amicus Curiae Native Village of Northway.
Heather R. Kendall-Miller and Martha L. King, Native American Rights Fund, Lloyd Benton Miller, Anchorage, and Vance A. Sanders, Juneau, for Amici Curiae Native Village of Venetie Tribal Government and Alaska Inter-Tribal Council.
Vance A. Sanders, Law Office of Vance A. Sanders, LLC, Juneau, for Amici Curiae Paskenta Band of Nomlaki Indians, Scotts Valley Band of Pomo Indians, and Death Valley Timbisha Shoshone Tribe.
D. Rebecca Snow, Assistant Attorney General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau, for Amicus Curiae State of Alaska.
Lois J. Schiffer, Assistant Attorney General, David C. Shilton and Ethan G. Shenkman, Attorneys, Department of Justice, Washington, D.C., John D. Leshy, Solicitor and Sandra J. Ashton, Office of the Solicitor, Department of the Interior, Washington, D.C., for Amicus Curiae United States.
Before MATTHEWS, Chief Justice, COMPTON, EASTAUGH, FABE, and BRYNER, Justices.
Seeking sole custody of his two children, John Baker, a member of Northway Village, filed a custody petition in the Northway Tribal Court. Anita John, the children's mother and a member of Mentasta Village, consented to Northway's jurisdiction. After the tribal court issued an order granting shared custody, Mr. Baker filed an identical suit in state superior court. Although Ms. John moved to dismiss based on the tribal court proceeding, the superior court denied the motion and awarded primary physical custody to Mr. Baker. Ms. John appeals, arguing that as a federally recognized tribe, Northway Village has the inherent sovereignty to adjudicate custody disputes between its members and that the superior court therefore should have dismissed the state case.
This appeal raises a question of first impression. We must decide whether the sovereign adjudicatory authority of Native tribes exists outside the confines of Indian country. After reviewing evidence of the intent of the Executive Branch, as well as relevant federal statutes and case law, we conclude that Native tribes do possess the inherent sovereign power to adjudicate child custody disputes between tribal members in their own courts. We therefore reverse and remand to the superior court to determine whether the tribal court's custody determination should be recognized by the superior court under the doctrine of comity.
Anita John and John Baker are Alaska Natives; Ms. John is a member of Mentasta Village and Mr. Baker is a member of Northway Village. Although they never married, Ms. John and Mr. Baker had two children together: John Jr., born in July 1991, and Emmanuel, born in June 1992. The family lived together in Ms. John's village until the parents ended their relationship in 1993. For the next two years, Ms. John and Mr. Baker cooperated in sharing custody of John Jr. and Emmanuel. This cooperation ended in July 1995 when Mr. Baker refused to return the children to Ms. John.
In July 1995 Mr. Baker filed a petition with the Northway Tribal Court requesting sole custody of John Jr. and Emmanuel. The tribal court sent a notice to the parties on August 10 informing them of their right to be present at the custody hearing, and both parents participated in the hearing held on August 29. At the conclusion of the hearing, Tribal Court Judge Lorraine Titus ordered the parents to share custody of the children on an alternating monthly schedule. Judge Titus stated, however, that this arrangement would be temporary and that she would reconsider the custody question in one year, before the oldest child entered school.
The parents followed the tribal court's order from September to December, deviating from the alternating schedule only so that Ms. John could care for the children while Mr. Baker was serving a sentence for DWI. During these months Mr. Baker appealed to the tribal court to change its custody order, but the court denied his request. Dissatisfied with the tribal court's custody determination, Mr. Baker filed a separate action in state court in December. In the affidavit accompanying the state complaint, required at that time under the Uniform Child Custody Jurisdiction Act (UCCJA),1 Mr. Baker misled the superior court by stating that he was "unaware of any custody proceeding regarding the children, except as provided herein, in Alaska, or any other jurisdiction."
Citing the tribal court proceedings, Ms. John filed a motion to dismiss the state court action. The superior court denied her motion. Ruling first that the Indian Child Welfare Act (ICWA)2 did not apply to a custody dispute between parents, the court concluded that it had subject matter jurisdiction over the suit. The court then stated that even if the tribal court had concurrent jurisdiction, "the facts of this case [would] require" superior court involvement. The court pointed to the state's access to a child custody investigator and to the parents' different tribal affiliations as facts justifying its involvement in the case.
The superior court's initial temporary custody order was identical to the tribal court's. The parties therefore continued with the alternating monthly custody schedule until April 1996, when the superior court altered its temporary order to give Mr. Baker primary custody. The superior court's final order, entered after trial, maintained Mr. Baker as primary physical custodian and granted Ms. John visitation every other weekend during the school year and for at least eight weeks during the summer. Although it recognized that both parents had experienced problems with substance abuse in the past, the superior court found that Mr. Baker was in better control of his problems than Ms. John. In addition, the court stated that Ms. John needed to address other issues, such as her severe depression. Ms. John appealed to this court, arguing that the superior court should have granted her motion to dismiss.
Shortly after we initially held oral argument in this appeal, the United States Supreme Court decided Alaska v. Native Village of Venetie Tribal Government (Venetie II).3 We then requested supplemental briefing, asking the parties to address how the Venetie II decision affects the issues presented.
Resolving this appeal requires us to examine the nature and scope of Native American self-government in Alaska. We must decide whether Northway Village had the jurisdiction to adjudicate a custody dispute involving children who are tribal members. If Northway possessed such jurisdiction, we must then decide whether the superior court should have dismissed Mr. Baker's identical state suit.
In a line of decisions beginning with Native Village of Nenana v. State, Department of Health & Social Services,4 and ending in In re F.P.,5 we held that Native villages in Alaska do not have the power to adjudicate some types of child custody disputes. Recognizing the existence of these precedents, Ms. John presents two alternative arguments for finding tribal jurisdiction in this case. First, she argues that we can rule in her favor without overruling Nenana and F.P. because those decisions do not apply to the facts of this appeal. Second, she contends that even if Nenana and F.P. do apply, we should reconsider their holdings. Ms. John claims that, regardless of whether they occupy Indian country, Alaska Native villages can adjudicate child custody disputes between members because of their status as federally recognized tribes.
Mr. Baker's briefing focuses on perceived flaws in the tribal court's decision in this case. He therefore claims that even if Northway Village generally has jurisdiction to decide child custody disputes between members, state courts should not recognize this particular decision because the proceedings violated due process and because his children are not members of Northway Village. We evaluate each of the parties' arguments after discussing the relevant standard of review.
We rely on our independent judgment to decide legal questions such as the scope of tribal court subject matter jurisdiction and the meaning of federal statutes.6 In exercising our independent judgment, we will adopt the rule of law that is most persuasive in light of precedent, reason, and policy.7
Mr. Baker claims that the holdings in Nenana and F.P. compel the conclusion that Northway is without jurisdiction in this case. Although not conceding that these decisions apply to the facts before us, Ms. John asks us to reconsider the holdings of those decisions. All the amici, including the United States and the State of Alaska, join Ms. John in urging us to reconsider these decisions and recognize tribal court jurisdiction. Before we decide whether to re-examine our precedents, we must determine whether they apply to the facts before us. Accordingly, we begin our analysis with an examination of whether it is necessary that we revisit Nenana and F.P. in order to decide this case.
Although the holdings in Nenana and F.P. touched upon the contours of tribal court jurisdiction, both of those decisions were rooted in a pair of federal laws that may not apply to the facts of the dispute between Ms. John and Mr. Baker: Public Law 2808 (P.L. 280) and the Indian Child Welfare Act (ICWA).9 If this case does not fall within the scope of either of those pieces of legislation, then...
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