Native Village of Venetie I.R.A. Council v. State of Alaska

• Decision Date: 06 November 1990
• Docket Number: No. 88-3929,88-3929
• Citation: 918 F.2d 797
• Parties: NATIVE VILLAGE OF VENETIE I.R.A. COUNCIL; Native Village of Fort Yukon I.R.A. Council; Nancy Joseph; Margaret Solomon, Plaintiffs-Appellants, v. STATE OF ALASKA; Myra Munson, in her official capacity as Commissioner of the Department of Health and Social Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 797

918 F.2d 797

NATIVE VILLAGE OF VENETIE I.R.A. COUNCIL; Native Village of Fort Yukon I.R.A. Council; Nancy Joseph Margaret Solomon, Plaintiffs-Appellants, v. STATE OF ALASKA; Myra Munson, in her official capacity as Commissioner of the Department of Health and Social Services, Defendants-Appellees.

No. 88-3929.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 9, 1989.

Submission Vacated Aug. 10, 1989.

Resubmitted May 8, 1990.

Decided Nov. 6, 1990.

Judith K. Bush, Alaska Legal Services Corp., Fairbanks, Alaska, for plaintiffs-appellants.

D. Rebecca Snow, Office of the Atty. Gen., Fairbanks, Alaska, for defendants-appellees.

Rebecca Craven, Native American Program, Oregon Legal Services, Portland, Or., for amici curiae Confederated Tribes of the Grand Ronde of Oregon.

Lloyd Benton Miller, Sonosky, Chambers, Sachse & Miller, Anchorage, Alaska, for amici curiae Alaska Federation of Natives.

Appeal from the United States District Court for the District of Alaska.

Before O'SCANNLAIN, LEAVY and TROTT, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether federal law requires the state of Alaska to accord "full faith and credit" to child-custody determinations made by the tribal courts of native villages.

I

The native villages of Venetie and Fort Yukon lie on or above the Arctic Circle in Alaska's frozen tundra. Venetie has a population of 132, according to the 1980 census, all but three of whom are native. Five hundred and eighty-six people reside in Fort Yukon; 442 are native.

The native villages are organized under the Indian Reorganization Act ("I.R.A."). See 25 U.S.C. Sec. 476 (1988). The villages' I.R.A. councils, two of the plaintiffs in this action, are the duly organized and elected governing bodies of the native villages.

Plaintiff Margaret Solomon is an Athabascan Indian from the Native Village of Fort Yukon. In the fall of 1985, Solomon was asked whether she would adopt a child born on September 28, 1985. She went to Fairbanks to pick up the infant, then eight days old. On May 27, 1986, the tribal court of the Native Village of Fort Yukon purported to formalize the adoption. Subsequently, in October 1986, Alaska denied Solomon benefits under the Aid to Families with Dependent Children program. State welfare officials informed Solomon that the state would not recognize the purported adoption and that the child was therefore not eligible for AFDC benefits.

Nancy Joseph is also an Athabascan Indian from the Native Village of Fort Yukon. One of Joseph's relatives, an expectant mother, asked Joseph to adopt the baby following the child's birth. Joseph agreed, and took the child home from the hospital shortly after his birth on February 24, 1986.

As the child's natural mother was from Venetie, she consented to the adoption in the tribal court of the Native Village of Venetie. Joseph subsequently requested a substitute birth certificate showing her to be the child's mother. However, the Bureau of Vital Statistics of the state of Alaska denied the request, observing that the Bureau "does not give recognition to native or tribal council adoption orders at this time." ¹

In June 1986, Joseph was laid off her job at the University of Alaska. After she had exhausted her unemployment benefits, she applied for AFDC benefits. On October 20, 1986, the Division of Public Assistance denied Joseph's application, informing her that "the courts have not recognized the Tribal adoption of the child. You should reapply when you can prove that you are the mother of the child." ²

Ms. Joseph, Ms. Solomon, the Native Village of Venetie I.R.A. Council, and the Native Village of Fort Yukon I.R.A. Council brought this suit in the United States District Court for the District of Alaska. They sought to enjoin the state of Alaska and certain of its officials from refusing to recognize the tribal court adoptions. ³ The plaintiffs asserted that under the Indian Child Welfare Act of 1978 ("Act"), 25 U.S.C. Secs. 1901-1963 (1988), Alaska was required to give full faith and credit to the native-village adoption decrees. See id. Sec. 1911(d). Both the plaintiffs and defendants moved for summary judgment. In a thorough and comprehensive opinion, the district court dismissed the plaintiffs' claims. See Native Village of Venetie I.R.A. Council v. State of Alaska, 687 F.Supp. 1380 (D.Alaska 1988). This timely appeal followed.

II

We first consider whether the district court had jurisdiction to hear the plaintiffs' grievances.

A

Since our jurisdiction is limited, we must determine whether federal courts have been empowered to hear this controversy. We begin with the claims of the native village plaintiffs. Congress has granted to federal district courts "original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States." 28 U.S.C. Sec. 1362 (1988). The parties do not disagree that the "matter in controversy" here arises under the federal Indian Child Welfare Act. Rather, it is disputed whether the native villages are a "tribe or band" for purposes of this section.

We recently identified two factors which a court may consider to determine whether an Indian group is such a "tribe or band" with a "duly recognized" governing body within the meaning of section 1362: (1) whether the Indian group has a governing body approved by the Secretary of the Interior under regulations issued pursuant to 25 U.S.C. Sec. 476, or (2) whether the Indian group is a group or village listed as a native village in the Alaska Native Claims Settlement Act, 43 U.S.C. Sec. 1610(b)(1). See Native Village of Noatak v. Hoffman, 896 F.2d 1157, 1160 (9th Cir.), cert. granted, --- U.S. ----, 111 S.Ct. 37, 112 L.Ed.2d 14 (1990). The native villages of Venetie and Fort Yukon satisfy both criteria. See, e.g., 43 U.S.C. Sec. 1610(b)(1) (1982). Accordingly, they properly invoked federal jurisdiction under section 1362.

As to the individual plaintiffs, Joseph and Solomon, the district court had jurisdiction over their claims under 28 U.S.C. Sec. 1331. In Snow v. Quinault Indian Nation, 709 F.2d 1319 (9th Cir.1983), cert. denied, 467 U.S. 1214, 104 S.Ct. 2655, 81 L.Ed.2d 362 (1984), we held that an action which raised "the issue of tribal sovereign powers," even if raised by an individual rather than a tribe, was "a sufficient federal question ... upon which to base Sec. 1331 jurisdiction." Id. at 1321. Joseph's and Solomon's claims, as well as those of the native villages, raise the issue of the inherent tribal sovereignty of the native villages. As such, the district court possessed jurisdiction over these claims under section 1331.

B

Alaska argues that the villages' suit is barred by the eleventh amendment. This question was also resolved in Noatak. We held that the states had consented to suit against them by Indian tribes when such states joined the Union, and that this consent extended to suits by native villages in Alaska. See Noatak, 896 F.2d at 1162-65. The eleventh amendment therefore does not bar the native villages from pursuing this action. ⁴

The claims of Joseph and Solomon are, however, barred by the eleventh amendment to the extent that retroactive relief is sought. See Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985). Nonetheless, we agree with the district court--and Alaska does not seriously challenge this holding--that the eleventh amendment does not bar Joseph's and Solomon's requests for injunctive relief against the Commissioner of the Department of Health and Social Services. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

Whether Joseph's and Solomon's requests for declaratory relief survive eleventh amendment scrutiny is less clear. In Green v. Mansour, the Supreme Court concluded that declaratory relief is impermissible where such relief would "have much the same effect as a full-fledged award of damages or restitution by the federal court," the very type of relief forbidden by the eleventh amendment. 474 U.S. at 73, 106 S.Ct. at 428. Put another way, declaratory relief is not available if its sole efficacy would be as res judicata in a subsequent state court action for retroactive damages or restitution. Id. at 72-73, 106 S.Ct. at 428. However, such is not the case here. Not only has Alaska refused to recognize the native village tribal court adoptions in the past, it continues to do so in the present, and will apparently continue to refuse recognition in the future. Thus, if this refusal is ultimately determined to be unlawful, the grant of declaratory relief can most properly be described as "a mere case-management device that is ancillary to a judgment awarding valid prospective relief." Id. at 71, 106 S.Ct. at 427. Joseph's and Solomon's request for declaratory relief is not barred by the eleventh amendment.

C

Alaska argues that the plaintiffs have not alleged any federal causes of action. Specifically, it urges that statutory "full faith and credit" clauses, such as that contained in the Indian Child Welfare Act, do not automatically give rise to a federal cause of action. Alaska does not specifically challenge plaintiffs' other causes of action. However, since the failure to state a federal cause of action necessarily implicates this court's subject-matter jurisdiction, see Ellis v. Cassidy, 625 F.2d 227, 229 (9th Cir.1980), we consider nostra sponte each alleged cause of action.

Again, we begin with the native villages' causes of action. The plaintiffs allege that the defendants' actions deprived the native villages of rights secured under the "federally-protected inherent right of self-governance." Complaint p 17. In Noatak, we held that Noatak had properly invoked federal subject-matter jurisdiction by alleging that "the Commissioner [of the ...