Native Vill. of Chignik Lagoon v. State, Supreme Court No. S-18090

• Docket Number: Supreme Court No. S-18090
• Decision Date: 14 October 2022
• Citation: 518 P.3d 708
• Parties: NATIVE VILLAGE OF CHIGNIK LAGOON, Appellant, v. State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES AND NATIVE VILLAGE OF WALES, Appellees.
• Court: Alaska Supreme Court

518 P.3d 708

NATIVE VILLAGE OF CHIGNIK LAGOON, Appellant,

v.State of Alaska, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES AND NATIVE VILLAGE OF WALES, Appellees.

Supreme Court No. S-18090

Supreme Court of Alaska.

October 14, 2022

Michael J. Walleri, Jason Weiner and Associates, PC, Fairbanks, for Appellant.

Anna R. Jay and Jessica M. Alloway, Assistant Attorneys General, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for Appellee State of Alaska.

Ali G. Wykis, Kawerak, Inc., Anchorage, for Appellee Native Village of Wales.

Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.

OPINION

MAASSEN, Justice.

I. INTRODUCTION

Two tribes claim to be a child's tribe for purposes of the Indian Child Welfare Act (ICWA). The Native Village of Wales claims that the child is a tribal member, and the Native Village of Chignik Lagoon claims that the child is "eligible for tribal membership." After the superior court terminated the biological parents’ parental rights, Wales moved to transfer subsequent proceedings, including potential adoption, to its tribal court. Chignik Lagoon intervened in the child in need of aid (CINA) case, arguing that the child is not a member of Wales under Wales's constitution and that transfer of further proceedings to the Wales tribal court was not authorized under ICWA.

The superior court found that the child is a member of Wales and that Wales is the child's tribe for ICWA purposes, and the court therefore granted the transfer of jurisdiction. Chignik Lagoon appeals. We affirm the superior court's determination that the child is a member of Wales and that Wales was appropriately designated as the child's tribe for ICWA purposes. We also conclude that, given that ruling, Chignik Lagoon lacks standing to challenge the transfer of proceedings to the Wales tribal court.

II. FACTS AND PROCEEDINGS

Trent O.¹ was born in July 2018. Wales considers Trent's mother and maternal grandmother to be tribal members, though neither lives in the village of Wales.

Trent tested positive for opiates at birth. On August 6 the Office of Children's Services (OCS) filed a non-emergency petition for adjudication of Trent as a child in need of aid and for temporary custody. Presuming that Trent was eligible for Wales tribal membership, the superior court proceeded under ICWA. A Wales tribal representative attended the continued probable cause hearing three days later, and the notice of rights required by ICWA was sent to Wales.²

Trent was released from the hospital's neonatal treatment unit about a month after his birth, and OCS placed him in a foster home with David and Darla Dunn, who had already adopted Trent's cousin. David's mother is Alaska Native and a Chignik Lagoon tribal member, and other extended family of the Dunns live in the village of Chignik Lagoon. Trent interacted with David's family regularly. Darla testified that Wales, on the other hand, "never reached out to [her]" while Trent was living with her and David.

Wales did, however, continue to participate in the court proceedings, sending a representative to 13 of the 22 hearings. Following a termination trial in August and September 2020, the court terminated the parental rights of Trent's parents; they are not involved in this appeal.

In December 2020 Wales petitioned to transfer post-termination CINA proceedings to its tribal court, submitting an acceptance of jurisdiction signed by five tribal court judges and a tribal representative. The guardian ad litem and OCS opposed the petition, arguing that ICWA's jurisdictional transfer provision³ did not require transfer of post-termination proceedings. It was their position that Trent should remain with the Dunns, who hoped to adopt him.

The superior court agreed that ICWA's jurisdictional transfer provision did not apply to post-termination proceedings, but it determined that it nevertheless had authority to transfer jurisdiction to the Wales tribal court. The court quoted our opinion in Starr v. George ⁴ : "ICWA applies only to specified child custody proceedings, which are limited to foster care placement, termination of parental rights, preadoptive placement, and adoptive placement."⁵ The court concluded that under the plain language of ICWA, when a tribe seeks a transfer of jurisdiction to tribal court, a state court should grant it absent good cause. The court granted the transfer to the Wales tribal court in late December 2020.

Before the transfer took effect, David, Trent's foster father, enrolled as a member of Chignik Lagoon. In early January 2021 Chignik Lagoon filed a motion to stay the transfer, a motion to intervene, and a petition to invalidate the transfer order. Chignik Lagoon argued that granting tribal intervention and transfer to Wales was error and that Chignik Lagoon, not Wales, was Trent's tribe for ICWA purposes. The superior court granted the stay without ruling on the other motions.

Wales enrolled Trent as a member on February 13, and on February 24 Wales, having participated in the proceedings for the past few years, moved to formally intervene.

On April 12 the superior court held an evidentiary hearing to determine which tribe was Trent's tribe under ICWA. The Dunns testified about their relationship with Trent as foster parents and Trent's interactions with members of Chignik Lagoon. The court heard from Chignik Lagoon's ICWA caseworker, who also served on Chignik Lagoon's tribal court. She testified about the requirements for tribal membership under Chignik Lagoon's constitution, explaining that although Trent was eligible for membership from the moment the Dunns "picked him up from the hospital ... due to [the Dunns’] familial ties from birth," he was not yet an enrolled member.

An OCS caseworker testified about early and unsuccessful attempts to place Trent with family members. She explained that prior to Wales's transfer request, OCS's permanency plan was for Trent to be adopted by the Dunns, and that until the parents’ rights were terminated Wales had never expressed an interest in removing Trent from the Dunns’ care. The caseworker confirmed that "the Wales Tribe, all along throughout the life of, up to and through termination, were accepting of the Dunns’ placement and permanency goal [of] adoption."

Wales called Anna Oxereok, the president of the Native Village of Wales, to testify. Oxereok testified that both Trent and his biological mother are members of Wales and that Trent "was born Inupiat and ... Kingikmiut."⁶ She testified that in Wales, "when a child becomes orphaned, they're given to the next kin, to the brother, the sister, the aunt, the uncle. And that's the way of protecting our children, protecting our way is to make sure we keep the children in ... our tribe."

Though Oxereok testified she believed Trent "should go to family first," she confirmed that the "tribal court ha[d] yet to make any decisions about placement because the case had[n't] transferred yet." She testified that "if [Wales did] get jurisdiction, ... [its tribal council] would have a meeting.... They'd look his whole case over again." Oxereok also testified about the tribe's interpretation of its constitutional provision governing tribal membership.

Following the hearing, the court determined that Wales was Trent's tribe and ordered jurisdiction transferred to the Wales tribal court. Applying 25 C.F.R. § 23.109, the court found that Wales had "more significant contacts" with Trent.⁷ The court concluded that there was no good cause not to transfer jurisdiction to Wales, and it therefore vacated the stay and ordered the proceedings transferred. The court also granted Chignik Lagoon's motion to intervene, vacated all future hearings, and denied as moot all other outstanding motions — including Wales's motion for intervention and Chignik Lagoon's petition to invalidate the transfer.

Chignik Lagoon appeals. The superior court stayed the transfer order pending disposition of the appeal.

III. STANDARD OF REVIEW

"We evaluate de novo the scope of tribal jurisdiction and the meaning of federal statutes."⁸ When interpreting a statute we "apply our independent judgment, interpreting the statute according to reason, practicality, and common sense, considering the meaning of the statute's language, its legislative history, and its purpose."⁹ "We may affirm the superior court on any basis supported by the record, even if that basis was not considered by the court below or advanced by any party."¹⁰

IV. DISCUSSION

We first address whether the superior court erred in determining that Trent is a member of Wales. We then address whether the superior court erred in determining that Wales is Trent's tribe for ICWA purposes. Last, we address Chignik Lagoon's standing to challenge the transfer of post-termination proceedings to the Wales tribal court.

A. The Superior Court Did Not Err By Deferring To The Tribes’ Membership And Eligibility Determinations.

A federal regulation, 25 C.F.R. § 23.108, defines who decides tribal membership under ICWA:

(a) The Indian Tribe of which it is believed the child is a member (or eligible for membership and of which the biological parent is a member) determines whether the child is a member of the Tribe, or whether the child is eligible for membership in the Tribe and a biological parent of the child is a member of the Tribe, except as otherwise provided by Federal or Tribal law.

(b) The determination by a Tribe of whether a child is a member, whether a child is eligible for membership, or whether a biological parent is a member, is solely within the jurisdiction and authority of the Tribe, except as otherwise provided by Federal or Tribal law. The State court may not substitute its own determination regarding a child's membership in a Tribe, a child's eligibility for membership in a Tribe, or a parent's membership in a Tribe.

The superior court concluded that Trent is both a member of Wales and eligible for membership in Chignik Lagoon,...