John v. Baker

was a ingly entrusted car to Joshua jury dispute properly for the left

factual

decide.

IV. CONCLUSION superior court com- conclude

We instructions on

mitted reversible error its care, se, negligence per

the standard Accordingly, RE-

negligent we entrustment. superior and REMAND to

VERSE

court. JOHN, Appellant,

Anita BAKER, Appellee.

John

No. S-8099. Alaska. Court of

Sept. 8, 1999. 1997) omitted). Brown, (Alaska (citation P.2d

ment.” See Van Sandt v.

742 Regan, Harrington and Mark Andrew Corporation, Fair- Legal Alaska Services banks, Appellant. Franich, Advo- Assistant Public

J. John Fairbanks, McGee, cate, Advo- Brant Public cate, Niedermeyer, Anchorage, and Deborah Fairbanks, Appellee. for Walleri, N. Brown and Michael J. Harold Inc., Fairbanks, Conference, Tanana Chiefs Village of North- for Amicus Curiae Native way. and Martha L.

Heather R. Kendall-Miller Fund, Lloyd Rights King, Native American Miller, Anchorage, A. and Vance Benton Sanders, Juneau, for Amici Curiae Native Village Tribal of Venetie Government Alaska Inter-Tribal Council. Sanders, A. Law of Vance

Vance A. Office LLC, Juneau, Sanders, for Amici Curiae Indians, Scotts Paskenta Band Nomlaki Indians, Valley of Pomo and Death Band Valley Timbisha Tribe. Shoshone Snow, Attorney Assistant Gen- D. Rebecca Botelho, eral, Fairbanks, and Bruce M. At- General, Juneau, torney for Amicus Curiae of Alaska. State Schiffer, Attorney Assistant Gener- Lois J. Shenkman, al, David Shilton and Ethan G. C. Justice, Washing- Attorneys, Department of D.C., ton, Leshy, D. Solicitor and San- John Solicitor, Ashton, Depart- Office of the dra J. D.C.; Interior, Washington, ment of States. Amicus Curiae United Justice, MATTHEWS, Before Chief FABE, COMPTON, EASTAUGH, BRYNER, Justices.

OPINION cooperation Jr. and Emmanuel. This ended July 1995 when Mr. Baker refused FABE, Justice. return the children to Ms. John. I. INTRODUCTION July petition 1995 Mr. Baker filed a children, Seeking custody sole of his two Northway with the Tribal requesting Baker, Northway Village, John member of custody sole of John Jr. and Emmanuel. custody petition Northway filed a Trib- The tribal parties court sent a notice to the John, al Court. Anita the children’s mother August informing right them of their Village, and a member of Mentasta consent- present custody hearing, at the and both Northway’s jurisdiction. ed to After the parents participated in hearing held on granting tribal court issued an order shared August hearing, 29. At the conclusion of the custody, Mr. Baker filed an identical suit in Judge Tribal Court Lorraine Titus ordered superior Although court. Ms. John parents to share of the children moved to dismiss based on the tribal court alternating monthly on an Judge schedule. proceeding, superior court denied the stated, however, Titus arrangement that this primary physical motion and awarded custo- temporary would be and that she would re- dy appeals, arguing to Mr. Baker. Ms. John custody question consider year, in one tribe, federally recognized that as a North- before the oldest child entered school. way Village sovereignty has the inherent adjudicate custody disputes parents between its followed the tribal court’s or- superior September December, der from deviating members and that the court there- alternating fore from should have dismissed the state case. schedule so that Ms. John could care for the children while appeal question This im- raises of first serving Mr. Baker was a sentence for DWI. pression. We must decide whether the sov- During appealed these months Mr. Baker ereign adjudicatory authority of Native order, change custody the tribal court to its tribes exists outside the confines of Indian request. but the court denied his Dissatis- reviewing After evidence of the custody fied with the tribal court’s determi- Branch, intent of the Executive as well as nation, separate Mr. Baker filed a action in law, relevant federal statutes and case we state court in In December. the affidavit possess conclude that Native do tribes accompanying complaint, required the state sovereign power adjudicate inherent to child at that time under the Uniform Child Custo- custody disputes between tribal in members dy (UCCJA),1 Jurisdiction Act Mr. Baker their own courts. therefore We reverse and superior by stating misled the court that he superior remand to the court to determine any custody proceeding was “unaware of re- custody whether the tribal court’s determina- children, garding except provided as recognized by superior tion should be herein, Alaska, any jurisdiction.” in other comity. court under the doctrine of Citing proceedings, the tribal court Ms. II. FACTS AND PROCEEDINGS John filed a motion to dismiss the state court Anita John superior and John Baker are Alaska action. The court denied her mo- Natives; Ms. Ruling John a member of Mentasta tion. first that the Indian Child Wel- (ICWA)2 Village custody and Mr. Baker is a member of North- fare Act apply did not to a married, way Village. Although they dispute parents, never between the court concluded Ms. John and Mr. Baker had two children that it had matter Jr., together: July in John born the suit. The court then stated that even if Emmanuel, family jurisdiction, born June 1992. The the tribal court had concurrent together village lived Ms. John’s until the require” supe- “the facts of this ease [would] parents relationship ended their pointed rior court involvement. The court to years, For the next two Mr. Ms. John and the state’s access to a child investi- cooperated sharing custody Baker gator parents’ of John and to the different et seq. et seq. 1. Former AS 25.30.010 2. 25 U.S.C. beginning Na In a line of decisions justifying involvement facts its affiliations as State, Department Village Nenana v. tive in the case. Services,4 ending in Health & Social temporary cus- initial superior The court’s F.P.,5 villages in held that Native In re we the tribal court’s. tody identical to order was adjudicate power to do not have the Alaska with the al- continued parties therefore custody disputes. types child some until monthly custody schedule ternating prece Recognizing the existence of these superior court altered

April when dents, presents alternative ar Ms. John two pri- give Baker Mr. temporary its order jurisdiction in finding this guments for superior court’s final mary custody. First, argues we can rale in she case- trial, order, overruling Mr. after maintained Nenana entered her favor without apply do not those decisions physical custodian and F.P. because primary Baker as Second, con appeal. she the facts this every other visitation granted Ms. John apply, F.P. if Nenana and do tends that even year and for at during the school weekend holdings. reconsider their Ms. we should Al- during the summer. eight weeks least that, they regardless of whether claims John parents had recognized that though it both country, Alaska Native vil occupy Indian abuse experienced problems with substance adjudicate custody disputes lages can child that Mr. past, superior court found their because of status between members problems his in better control of Baker was federally recognized tribes. addition, court stated than Ms. John. perceived briefing focuses on Mr. Baker’s other is- needed to address that Ms. John in this in the tribal court’s decision flaws sues, depression. Ms. her severe such as if claims that even case. He therefore court, arguing appealed this John Northway Village generally has granted her mo- superior, court should have custody disputes child between to decide tion dismiss. members, recognize state courts should initially argu- Shortly held oral after we proceed- particular this decision because appeal, the United States Su- ment ings process and because his violated due v. Native Vil- preme decided Alaska Northway Vil- children are not members (Venetie lage Tribal Government parties’ argu- Venetie lage. evaluate each of We ).3 requested supplemental discussing brief- II We then after the relevant standard ments ing, asking parties address of review. how present- II affects the issues

Venetie decision Review A. Standard of ed. independent judg rely on our

We legal questions such as the ment to decide III. DISCUSSION subject jurisdic matter scope of tribal court meaning In appeal requires us to exam- and the of federal statutes.6 Resolving this tion judgment, exercising independent our we will American scope the nature and of Native ine persuasive adopt rale of that is most the law decide self-government in Alaska. We must reason, policy.7 light precedent, in jurisdic- Northway Village whether had the involving- adjudicate custody dispute tion to Tribal Court B. Prior Decisions on Our members. If North- children who are tribal Custody to Decide Dis- Jurisdiction jurisdiction, way possessed we must such putes Apply Do Not to This Case. superior court then decide whether holdings that the in Ne- should have dismissed Mr. Baker’s identical Mr. Baker claims compel F.P. the conclusion that nana and state suit. Hydaburg Coop. Hydaburg Fisher- L.Ed.2d 30 6. See Ass’n 3. 522 U.S. 1996); ies, (Alaska re P.2d In T.N.F., (Alaska 1989). 781 P.2d (Alaska 1986). 4. 722 P.2d 219 Ha, P.2d 1284 n. 6 7. See Guin v. 1979). (Alaska (Alaska 1992). 5. 843 P.2d 1214 Northway jurisdiction evaluating arguments appeal in In is without this case. in Although conceding Nenana, 1918(a) not that these decisions § we first considered us, apply to the facts before Ms. John asks ICWA,12 any which states Indian tribe holdings us to reconsider the of those deci- jurisdiction that became to state un- amici, including sions. All the the United may jurisdiction der P.L. 280 “reassume” Alaska, join and the Ms. John States State custody proceedings by petitioning over child urging these us reconsider decisions Secretary of the Interior.13 Public Law recognize jurisdiction. tribal court Be- grants 280 is a federal statute that several fore we decide whether to re-examine our states, Alaska, jurisdiction including over all they we precedents, must determine whether arising civil and criminal matters in Indian apply Accordingly, to the us. we facts before Nenana, country.14 In interpreted we analysis begin our with an examination of 1918(a)’s reassumption requirement necessary it whether we revisit Nena- jur- mean that P.L. 280 had vested exclusive na and F.P. in order to decide case. custody isdiction over child matters Although holdings and F.P. Nenana courts, and that the state exercised exclusive upon touched the contours of tribal court particular until a tribe successful- jurisdiction, both of those were decisions ly petitioned Secretary of the Interior.15 may pair rooted in a of federal laws that village peti- Because the of Nenana had not apply dispute to the facts of the between Ms. Secretary tioned the of the Interior for reas- (P.L. John and Mr. Baker: Public Law 2808 sumption, superior we affirmed the court’s 280) and the Indian Child Welfare Act petition denial of the for transfer.16 (ICWA).9 If this case does not fall within F.P., In we were asked to reconsider Ne- scope pieces legisla- of either of those nana n holding light of the Ninth Circuit’s tion, holdings prior then the our decisions Village decision in Native Venetie I.R.A. squarely today, may are not us before and it (Venetie ).17 ques- Council v. Alaska I unnecessary to reconsider them.

tion before the Ninth Circuit Venetie I was holdings 1. The Nenana and F.P. required whether ICWA the State of Alaska recognize tribal court child deter- qhestion Nenana and F.P. dealt with the argued minations.18 The state that because falling of tribal court in cases granted 280 had P.L. state courts exclusive Nenana, under ICWA in Alaska. disputes, villages over all civil village petitioned superior court under any custody jurisdic- could not exercise child pro- to transfer a ICWA ehild-in-need-of-aid petitioning Secretary tion without first ceeding village’s jurisdiction.10 to the Inter- ICWA, the Interior.19 The Ninth Circuit resolved preting superior court ruled that first, dispute by addressing two issues: village transfer was improper because villages inherently “whether the native are petitioned Secretary had not of the Inte- sovereign, rior to reassume at least insofar as domestic rela- over child custo- concerned,” dy proceedings.11 child-custody tions or issues are 15, 1953, 83-280, August try, 8. Act of Pub.L. 67 Stat. and allowed assume other states to such (codified jurisdiction voluntarily. § as amended at 18 U.S.C. In Alaska was 1321-26, 1360). mandatory jurisdic- §§ § 25 U.S.C. added to the U.S.C. list P.L. 280 Aug. tions. See Act of P.L. No. et seq. § 9. 25 U.S.C. 1901 2,§ 72 Stat. 545. 10. See 722 P.2d at 220. Nenana, 15. See P.2d 221.

11. See id. at 221. 16. See id. 12. See id. (9th Cir.1991). 17: 944 F.2d 548 1918(a). §

13. 25 U.S.C. 18. See id. at 550. 1360(a). §

14. See 28 U.S.C. Enacted in required P.L. 280 five states to assume civil and criminal over affairs in Indian coun- 19. See id. at 558. interpretation application of ICWA second, stripped our Congress has “whether aspect sovereign au- villages of that In to determine if those and P.L. 280. order child-custody thority encompasses de- then, which controlling, we must ex- are decisions suggesting that it Although terminations.” laws simi- amine whether those two federal sovereign- finding of impediment no to a saw presently us. larly apply to the case before sovereign status ty, concluded that the court analysis depended a factual that should on apply dispute not to the 2. ICWA does then by the court.21 It conducted district and Ms. John. between Mr. Baker stripped the vil- held that P.L. 280 had custody sovereignty issues lages of over child including provisions, ICWA’s only granted the states con- it had because 1918(a) § reassumption requirement of jurisdiction.22 current F.P., apply interpreted in Nenana we F.P., disagreed In we with the Ninth Cir custody proceedings” as de to “child sover on both the issue of cuit’s conclusions § spe by the statute.27 ICWA’s fined meaning P.L. Ad eignty and on the cifically from this definition an excludes first, dressing sovereignty question we custody parents in a award of to one “opinion Circuit’s stated that Ninth proceeding. Ms. John relies on this divorce contrary Village v. Alas to Native Stevens argue inapplicable language to that ICWA is Planning,[23] where we Management ka & in a dispute it will result this because history relationship ‘the concluded that Thus, custody parent. to a we must award government and Alaska the federal between custody un whether a battle between decide Congress intended Natives indicates that ex parents qualifies for the divorce married groups Native not be treat that most Alaska ”24 ception to ICWA.28 Moving sovereigns.’ to the second ed as analysis, step in I we reiterated the Venetie enacting Congress’s intent in ICWA granted the states our view that P.L. 280 had exception suggests that the divorce should over child mat exclusive apply to this case. created ICWA ters, quoting portion from the of Nenana 1918(a).25 it was alarmed the number of interpreted We because ICWA’s holding prior agencies therefore reaffirmed our Indian children removed cus tribal courts lack over child parents placed into from their and tribes and they tody proceedings under until suc ICWA policy In the declara non-Indian homes.29 cessfully jurisdiction by filing a reassume itself, Congress incorporated into tion ICWA Secretary petition of the Interior.26 purpose was “to stated that the statute’s dual of Indian children sum, protect the best interests adjudi- our to limit tribal decisions stability security promote catory power in Nenana and F.P. turned on and to §§ 27. See 25 U.S.C. Id. at 556. 21. See id. at 559. Although superior court ruled that ICWA apply custody dispute did not to this and neither at 562. See id. aspect party appealed of the court's decision, argues 1988). that ICWA does (Alaska Mr. Baker now 23. 757 P.2d 32 arguably apply. though Even Mr. Baker has not F.P., 1992) (Alaska In re 843 P.2d preserved appeal, this court can this issue for (internal omitted). ellipsis and citation any grounds. See Gunderson v. Univer affirm Alaska, Fairbanks, sity 922 P.2d 236 n. 9 25. See id. at 1215-16. Moreover, (Alaska 1996). ques we address the applicability ICWA's because it is "critical tion of (Rabi But id. at 1217-18 See id. at 1216. see decision,” just "parties proper and and the to a C.J., dissenting) (reasoning "it is nowitz that K.E., opportunity to brief it." In re have had an inconsistent with the doctrine of inherent tribal 1173, (Alaska 1987) (citation omit 744 P.2d § sovereignty that 1918 of the ICWA to conclude ted). together, tribes and Public Law taken divest of even over child custo concurrent (citation omitted)). dy § 29. See 25 U.S.C. 1901. matters” legislative essary disputes Indian and families.”30 The parents suggests tribes between history emphasizes purpose, stating this Congress dual exception that intended for the to protect rights that the statute “seeks to apply parental custody to all battles. of the Indian child as an Indian and the Relying legislative history, on the the Bu- rights community of the Indian and tribe reau Indian Affairs has that concluded retaining society.”31 its children in its Congress intended exception for the divorce custody dispute between Ms. John and apply to all proceed- to “domestic relations Mr. Baker raises neither of the concerns ings long custody ... so is awarded to as one sought to ICWA address.' Whatever the out- parents.”33 Additionally, of the the courts battle, come of the John Jr. and question that have considered the have con- split Emmanuel will'continue to their time cluded apply disputes does not to ICWA parents between the homes of their Native parents.34 between unmarried Based on this villages. and their Native Because this case law, case the conclusions of the Bureau of pose possibility does not that the children Affairs, purpose Indian and the of ICWA as parents

will be removed from their or their expressed in legislative history, its text and tribes, jurisdiction provi- ICWA’s exclusive apply we conclude that ICWA does not procedural guide- sion well as as its intricate inter-parental custody dispute.35 unnecessary protect family’s lines’are or the tribes’ interests. Supreme 3. The Court’s decision in Ven- Specific legislative history suggests also suggests etie II that P.L. 280 does not Congress exception intended the divorce apply to occupying Native tribes Alas- apply any parental custody dispute. ka Native Claims Settlement Act ICWA, Commenting on a draft of the De- lands. partment Congress of the Interior wrote to suggesting exceptions it create to the The United States Court’s recent type proceedings covered the Act. II suggests Stat- Venetie decision that P.L. ing “protections provided by that the grants this act disputes which states proceedings par- are not needed in country, between application Indian has limited ents,” Department of the Interior advo- Alaska because most Native not land will exception.32 Apparent- cated for the divorce qualify country.36 for the definition of Indian ly agreeing view, Department’s text, By very its applies P.L. 280 exception country.37 inserted the divorce Northway Village into Indian If does legislature’s occupy ICWA. The decision to country, rulings create then our exception Department’s interpreting based on the germane P.L. 280 are not to this opinion protections appeal. ICWA’s were unnec- §

30. 25U.S.C. inapplicability 35. We note that ICWA’s to all inter-parental custody disputes underly- was an R.J., ing assumption of our decision in J.W. v. 95-1386, (1978), H.R.Rep. reprinted No. at 23 (Alaska 1998). 951 P.2d in 1978 U.S.C.C.A.N. 36. See 118 S.Ct. at 954-55. H.R.Rep. No. at 31. portion 37. The relevant of P.L. 280 reads as Courts; 33. Guidelines for State Indian Child follows: 67,584, 67,587 Custody Proceedings, Fed.Reg. (1979). Although the Bureau of Indian Affairs (a) following Each of the States listed in the promulgate guidelines regula- did not these table shall have over civil causes of tions, they represent interpretation do its action between Indians or to which Indians guidelines important statute and as such parties are which arise in the areas controlling significance. but not Francis, See Batterton v. country opposite listed the name of the State to 416, 424-25, the same extent that such State has L.Ed.2d 448 over other civil causes of action ...: State affected Walksalong Mackey, 34. See Neb. Alaska All Indian within (1996); Defender, N.W.2d see re also In the State.... (S.D.1989). 1360(a). 435 N.W.2d 721-722 28U.S.C. II, relevance to this then P.L. 280 has no direct inter- In Venetie Court appeal. Settlement preted the Alaska Native Claims (ANCSA),38 Native claims which resolved Act conclude, then, that neither We by instituting a novel form land to Alaska applies to the case before nor P.L. 280 ICWA innova- ownership.39 this land Under Native Nenana and the decisions that us. Since scheme, existing Congress revoked all tive application in the it were rooted followed one, and in Alaska but Indian reservations statutes, underlying those these the rationale aboriginal and claims to extinguished all title ques specifically not called into precedents is exchange, entitled ANCSA

Alaska land.40 accordingly that it today. We conclude Native-owned, tion regional state-chartered necessary appropriate nor at this approximately neither village to receive corporations Nena- question of whether forty-four million acres of land time to reach the $962.5 wrongly monetary compensation.41 progeny decided.46 na and its were million II faced The Venetie was Court that the central issue We have determined ANCSA lands question with the of whether appeal tribal courts in this —whether country” under a federal qualify as “Indian child over non-ICWA statute, defining § the term. 18 U.S.C. country arising outside of Indian cases —is § of Native lands three kinds Under Nenana holdings in by our not affected country: Indian reserva qualify as Indian it, F.P. To resolve we must instead explore jurisdiction, Indian allot tions under federal federal law. nature of tribal under ments, “dependent Indian communi revoked all federal ties.” ANCSA Country Tribes without Indian Can C. in Alaska but one.43 Su reservations Custody Adjudicate Internal Child II that a village held Venetie preme Disputes. qualify occupying lands does not ANCSA Today we must decide for the first In community” definition of “dependent complexity and question significant time holding, Venetie II’s country.44 there dian in villages have import: Do Alaska Native fore, coun appears to undermine the Indian herent, sovereignty allowing non-territorial try villages, Alaska like claims of those disputes between them to resolve domestic Northway Village, occupy ANCSA examining After rele Northway Village occu their own members? lands.45 If does not II, pronouncements regarding sov- a result of Venetie federal py vant no et seq. Indian allotments. There has been conten- § 38. 43 U.S.C. 1601 Northway Village occupies such an al- tion that lotment, however, purposes 1601(a). and for the of this § 39. See id. at Northway Village is not appeal we assume that country. § 40. See id. at Village Tribal argues prior 41. See Alaska v. Native Venetie that our inter 46.The United States II), (Venetie 118 S.Ct. Gov't 951, 522 U.S. pretation relevant even if of P.L. 280 remains (1998). Northway Village occupy 140 L.Ed.2d 30 Indian coun does contrary try to established because it would be 1151; II, § S.Ct. at greater 42. See 18 U.S.C. Venetie conclude that a tribal court had law to inside, outside, powers than of Indian rather that, generally, It is true Indian nations 1610(b). post-ANC- greater possess powers 43 U.S.C. The sole in Indian than See See, e.g., they in Alaska is the Metlakatla v. Jicarilla SA Indian reservation do outside it. Merrion Tribe, Metla Apache on the Annette Islands. See 455 U.S. Reservation (1982) Community, (holding Island Reserve in Indian katla Indian Annette 1961), (Alaska Egan, country may powers rev'd in 362 P.2d over non tribes exercise 45, 54-55, members). part, 7 L.Ed.2d And at least one federal reservation Thus, the United States does still exist Alaska. recognition correctly notes in its brief that the II, Northway's jurisdiction disjunction creates a 118 S.Ct. at 954-55. See Venetie jurisprudence. law But inconsisten Indian cy notes, country may justification is does not create a to address 45. As Mr. Baker some Indian definition, squarely are not before us. sues that still exist in Alaska under the second recognized particular, that Alaska Native of the In ereign power, we hold tribes. tribes, by powers Department emphasized inherent as virtue their that the includ- list nations, possess authority. sovereign do ed those Alaskan entities that the federal government historically had treated as Congress’s finding 1. We defer tribes.55 sovereign Native tribes are Alaska Department suggested The also in the powers under law. federal preamble publish that its decision to the list previously held that We have opinion by was on a based recent the Solici- non-justiciable political question.47 a status is Interior, Department tor Thomas defer to the We therefore will determinations opinion, In Sansonetti.56 this Sansonetti Congress Executive and the Branch on sovereign evaluated the tribal status of Alas- question of tribal status.48 If villages, conducting ka Native the same his- recognizes group the Executive Branch analysis torical as did the Stevens court but tribe, sovereign Native Americans as a we reaching opposite Although conclusion.57 “must do the same.”49 recognizing villages that Alaska Native dif- recognition Prior to no such of Alas- significant ways fered from the tribes villages Village ka had occurred. In Native that, the Lower the Solicitor concluded Management Stevens v. Alaska & Plan- century, Congress for the last half and the ning,50 analysis we conducted an historical Department Interior “have dealt government and concluded that the federal though Alaska Natives as there were tribes recognized villages had never Alaska as sov- in Alaska.”58 ereign analysis tribes.51 We relied this language preamble The in the to the 1993 villages F.P. to hold that Native lacked sov- unquestionably list establishes that the De- ereignty.52 partment recog- of the Interior views the however, Department villages sovereign nized Alaska as entities. federally recognized Interior issued list of preamble Department’s affirms the view Northway Village tribes included and federally recognized possess gov- tribes villages in most of the other Native Alaska.53 autonomy stemming ernmental preamble, Department In the list’s from their tribal status: explained issuing Interior that it was the list ... [finds] The Bureau of Indian Affairs clarify in order to confusion over the tribal villages regional that the tribes listed status of various Alaska Native entities. The political below have functioned as entities Department previous believed that lists had exercising authority.... governmental interpreted villages been to mean that Native Alaska, although qualifying for federal funding, recognized sovereign purpose were not publication of the current sought rectify any tribes.54 It ... misunder- eliminate doubt as to the De standing sovereign partment’s by expressly and to reaffirm the un status intention Haldane, Recognized Eligible 47. See Atkinson v. 569 P.2d 53. See Indian Entities (Alaska 1977). Receive Services from the United States Bureau list], of Indian [hereinafter Affairs 58 Fed. 54,364, 54,368-69 (1993). Reg. Village Management 48. See Native Stevens Alaska (Alaska Planning, & 757 P.2d 34-35 1988). 54,364. 54. See id. at U.S.(3 Wall.) Holliday, 49. United States v. See id. 18 L.Ed. 54,365. 56. See id. at (Alaska 1988). 50. 757 P.2d 32 Interior, M-36,975 Dep’t Op. 57. See U.S. Solic. (Jan. 11, 1993).

51. See id. at 34. at 8-60 F.P., (Alaska list, 54,365 (quoting Fed.Reg. 52. See In re 843 P.2d 58. 1993 1992). opinion). Solicitor's - Acknowledging acknowledging si-sovereign De status.”64 that equivocally that villages partment has determined that the recognition step,” the federal “is no minor regional listed below are dis and tribes “perma- report recognition states that such tinctly Native communities and have the nently government-to-govern- establishes a contiguous in the 48 same status as tribes relationship ment between the United States villages regional and states.... [T]he recognized de- and the tribe as a ‘domestic simply eligible below are not tribes listed ”65 pendent nation.’ services, recognized as tribes for , they purposes. certain narrow Through the 1993 tribal list and the 1994 Rather governmental as oth have the same status Act, government Tribe List the federal has federally acknowledged er Indian tribes recognized of Alas- the historical tribal status their status as Indian tribes with virtue of villages Northway. like In defer- ka Native relationship govemment-to-govemment determination, recognize we also ence to that .[59] ... with the United States sovereign villages entities. such as may And for those who have doubted the Northway Village is a feder- The fact that Department the Interior to of the only part ally recognized tribe answers bodies, recognize sovereign political a 1994 question posed this case. Alaska Native lay Congress appears to such doubts to act of Northway unique villages such as are in a Federally Recognized In the Tribe rest. 1994,60 tribes, Congress specifically position: List Act of di- other Alaska Unlike most Department publish annually “a rected the villages occupy Native no reservations Secretary of all Indian tribes which the list part possess no Indian for the most recognizes eligible special pro- to be for the argue Mr. Baker and the dissent grams provided by and services the United country existence of tribal land —Indian —is to Indians because of their status as States the cornerstone of tribal court Department published trib- Indians.”61 Congress necessarily and that withdrew such 1998,. through al all of which lists for villages when from Alaska Native villages include Alaska Native such as North- it enacted ANCSA. way, specifically delegated au- based on this thority.62 argument, must decide To evaluate we much retain in the how tribes ab- legislative history The text and must, sence of reservation land. We in other the Tribe List Act demonstrate that Con words, meaning “sovereign- determine the gress recognized also views the tribes ty” post-ANCSA in the of Alaska’s context sovereign findings bodies. In the Act’s sec ANCSA, landscape by asking whether to the tion, Congress “sovereignty” discusses extent it eliminated Alaska’s Indian federally recognized Similarly, the tribes.63 country, villages Native also divested Alaska report provides House to the Act that federal recognition qua- sovereign powers. “institutionalizes the of their tribe’s list, 54,365-66 Fed.Reg. (emphases Eligible at from the United Receive Services 71,- added). Affairs, Fed.Reg. of Indian States Bureau 941, 71,945 (1998). 1998). (West seq. Supp. § 60. 25 U.S.C. 479a et 103-454, 63. See P.L. 108 Stat. 4791 61. Id. at 479a-1. (1994), H.R.Rep. reprint- No. at 2-3 ed in 1994 U.S.C.C.A.N. Recognized Eligible 62. See Indian Entities Receive Services the United States Bureau from Affairs, (1995); history Fed.Reg. legislative of Indian Id. at 2. The to the Act Recognized Eligible Congress recognized dispute see also Indian Entities reveals Bu- of Indian Alaska and did Receive Services from United States the existence Affairs, 58,- 58,211, Fed.Reg. recognition reau of Indian not intend for the tribal list to resolve (1996); Recognized dispute. Congress's But Indian Entities and Eli- See id. 4-5. gible to Receive Services from the United States ambivalence on the Indian issue does Affairs, 55,270, recognition Fed.Reg. the tribal Bureau of Indian not undermine its status 55,275 (1997); Recognized villages. of Alaska Native Indian Entities involving membership sovereign powers retain their nal functions 2. Tribes un- regulate internal domestic and domestic affairs lie within a re- tribe’s affairs specifically withdraws less sovereign powers.71 inherent tained authority to act. their law, too, long recognized Alaska self-government The extent of tribal sovereign powers exist unless divested. Congress.66 depends on the intent of We example, For we stated Ollestead v. Na begin analysis congressional our intent Tyonek72 Village principle tive that “the principle under federal with the established sovereign, self-govern that Indian tribes are “Indian tribes retain those funda law that ing governs entities” “all cases where essen sovereignty ... which mental attributes rights tial tribal relations or of Indians are by Congress or have not been divested recognized involved.”73 that “Indi We then necessary implication depen of the tribe’s subject only an affairs are to state law but Supreme dent status.”67 United States Congress explicitly prov the extent that so explained in v. Court United States Wheel Supreme ides.”74 In accordance with the starting point er that this stems from the Wheeler, approach Court’s reiterated in governance predates fact that tribal following cases that decision75 and estab founding powers of our “The of Indi nation: law, presume lished under Alaska we that are, general, powers an tribes inherent Thus, sovereign powers remain intact. sovereignty which has never been a limited begin by we evaluating federal statutes af extinguished. coming Eu Before fecting Alaska Natives order to determine ropeans, self-governing the tribes were sov Congress explicitly whether revoked the ereign political The sover communities.... sovereignty inherent Native Alaska’s of a eignty that the Indian tribes retain is by eliminating tribes their Indian unique character.”69 and limited however, dissent, begin asks us sovereignty Modern tribal is certain opposite premise. from the Rather than fol absolute; ly “[i]t not exists suffer lowing teachings of federal and state law subject complete Congress ance of and is respect sovereignty by presuming acts, But until ... defeasance. divested, sovereign power exists unless possess aspects Indian tribes still those quotes language the dissent from Mescalero sovereignty by treaty not withdrawn or stat Jones,76 Apache ute, Tribe v. which United by implication necessary as a result of Supreme States Court noted “Indians dependent explaining this their status.”70 rule, going beyond boundaries have Supreme reservation Court has articulated a generally held to non-discrimi sovereign powers core set of that remain been natory applicable law otherwise to all though depen intact even Indian nations are law; particular, this statement the dissent dent under federal inter- citizens.”77 From 564, 1245, Bracket, (1981). Apache 66. v. 101 S.Ct. 67 L.Ed.2d 493 See White Mountain Tribe 136, 143, 2578, 448 U.S. 100 S.Ct. 65 L.Ed.2d Part III.C.4 contains a full discussion of infra (1980); Wheeler, scope sovereignty. United States 435 U.S. of retained 313, 322-33, 1079, 98 S.Ct. 55 L.Ed.2d 303 (1978). 31, 1977). (Alaska 72. 560 P.2d Tribe, Apache Merrion v. Jicarilla 455 U.S. 67. 73. Id. 130, 146, 894, (1982); 102 S.Ct. 71 L.Ed.2d 21 Wheeler, also 435 U.S. at 98 S.Ct. 1079. see Id.

68. 435 U.S. 98 S.Ct. See, Montana, 563-67, e.g., 450 U.S. at (1978). 1245; Apache White Tribe v. Mountain Bracker, 448 U.S. 100 S.Ct. 322-33, (citations Id. at 98 S.Ct. 1079 (1980). L.Ed.2d 665 omitted). quotation internal marks 1267, 36 L.Ed.2d 114 76. 411 U.S. Id. at 98 S.Ct. 1079. See, Wheeler, e.g., 435 U.S. at 1079; States, Id. at 93 S.Ct. 1267. Montana v. United congressional princip express without dele- what it terms an “allocative survive deduces upon language, gation.”80 to ad- Based Mescalero’s The Court has continued le.”78 the dissent formulates a presumption proposition, requiring express here to this require delegation power only the basic rule and Congressional would reverse when courts, country, to power at least outside of Indian a tribe seeks to exercise outside of its recognize refuse to unless sovereign authority.81 core Congress specifically an act of authorizes adjudicatory power. exercise of tribal We Thus, determining whether accept deny invitation

refuse to sovereign powers, tribes retain their sovereignty to turn existence of tribal looks to the United States on its head. federal law character of the that the tribe seeks exercise, merely the location of events. principle” The dissent’s “allocative thesis accordingly adopt the We decline to dissent’s ignores teachings of Wheeler and approach federal law and-instead follow post-Mes- that follow it. In these decisions beginning premise that from the tribal sover decisions, calero the Court has not focused eignty respect of tribal issues self- of tribal au- on tribal land determinative governance Congress exists unless divested. thority. interpreting Instead of the Mescale- recognized strong that a tribe has a prohibi- language ro as an across-the-board protecting “preserving interest sovereignty tion in the of of tribal absence family wellspring Indian as the of its own country, example, Indian for the Court in Northway Village’s Because future.”82 sta Montana v. United States79 reconciled the federally recognized is undis tus as tribe general sovereignty that tribal exists rule puted adjudication custody and its of child specifically unless divested with the Mescale- necessary disputes over children is member language applies ro that state law to natives protect self-government Montana, “to or to con beyond reservation land. But relations,” dissent, trol internal its tribal courts re contrast to the articulates no test quire express congressional delegation no making the existence of reservation land de- right custody Instead, to determine of tribal chil power. terminative of tribal dren. explained Montana Court that Mescalero proposition express

stands for the that an congressional delegation required Finally, power we note a tenet of federal statutory interpretation to sustain tribal when the tribe has Indian law on that sought analysis scope to control matters outside the our informs issue. governmental authority: precedent supplies of internal clear instructions “[E]xer- Court power beyond interpreting necessary ambiguous eise of tribal what is for statutes: Courts protect self-government ambiguities affecting or to control must resolve statutes rights internal relations is inconsistent with the of Native in favor of Americans tribes, dependent Thus, light- status of the cannot will so Native Americans.83 we H.R.Rep. 78. Dissent at 774-776. No. at 19. F.P., (Alaska 79. 450 U.S. 101 S.Ct. 67 L.Ed.2d 493 83. See In re 843 P.2d (1981). 1992); see also South Dakota v. Yankton Sioux Tribe, 789, 800, 522 U.S. 118 S.Ct. (1998) (recognizing added) L.Ed.2d 773 canon (emphasis

80. Id. S.Ct. 1245 Mescalero, affecting sovereignty (citing law that federal laws 411 U.S. at 93 S.Ct. 1267). narrowly should be “construed favor of retain- ing rights”); Bryan County, v. Itasca 48 L.Ed.2d 710 See, Reina, 676, 685-88, e.g., Duro v. (1976) (stating guided by "we must be the emi- nently sound and vital canon ... that Duro, statutes the Court held that tribes lacked criminal passed dependent for the benefit of Indian tribes jurisdiction over nonmember id. Indians. See construed, decision, liberally expres- Shortly are to be doubtful Congress provided after the Indians”) being sions resolved in favor of the tribal criminal over nonmember In marks, (1983 (internal quotation ellipsis Supp. §§ dians. See 25 U.S.C. 1301-03 & and citations 1998). omitted). by Congress, simi- Executive Branch or we Congress intended to eliminate ly find that, powers larly accept Alaska tribes. their conclusion even after sovereign ANCSA, federally recognized Alaska Native post-ANCSA ANCSA Northway Village federal like retain sover- itself tribes sovereignty regarding tribal statutes eignty adjudicate disputes domestic be- Northivay’s support all tween members. child matters. otherwise would render the Tribe To hold Congress did Ample evidence exists occupy If that do not List Act hollow: tribes for ANCSA to divest tribes not intend powers inherent have no disputes adjudicate domestic powers their language in self-governance, the the Tribe Congress intended members. between expressly List Act that reserves to these to free Alaska Natives from ANCSA right “the ... to exercise the same tribes “lengthy wardship or trustee- dictates delegated inherent and authorities available divesting handicap ship,” not to tribes virtually to other tribes”87 would be mean- sovereign powers. princi- of their As them ingless. find untenable the conclusion We explained, the law has ANCSA pal author of intended for the Tribe List past “rejected paternalism of the empty gesture. Act to be an way gave an innovative Alaska Natives years passage after of ICWA seven forcing culture without retain their land and ANCSA’s enactment also makes clear system.”85 them into a failed reservation Congress did not intend to eradicate ANCSA any express intent But nowhere does the law family over law mat- tribal court abandon their to force Alaska Natives to goal to increase tribal sovereignty. ters. ICWA’s was custody involving over decisions trib- control ANCSA, too, ample evidence Outside Congress al children. viewed this increased Congress did not intend for ANC- exists that sovereignty as vital to the continued control powers adjudi- to divest tribes of their to SA legislative history the tribes. In the to disputes between members. cate domestic ICWA, Congress approval cited with a deci- congressional actions such as Post-ANCSA greater stating that “there can be no sion Act, ICWA, List and the Tribal the Tribe relations,’ to and no threat ‘essential that intended Justice Act indicate infringement right of the ... greater on the post-ANCSA to continue for Alaska Natives govern to interfere tribe to themselves than regulate their internal affairs. to custody over the of their with tribal control above that the Tribe List Act We noted villages Native are ex- children.”88 Alaska Congress’s that Alaska shows determination scope.89 plicitly within ICWA’s included sovereign villages Native are entities. The very presumes both that structure ICWA’s villages inclusion of Alaska Native on the by capable Act are the tribes covered Alaska Natives tribal lists makes clear that adjudicating child matters in their right, subject general principles “have the justice systems law, own courts and that of Federal Indian to exercise the same for of child appropriate are forums resolution delegated authorities available inherent and Indeed, legislative custody disputes.90 histo- And since this court de- to other tribes.”86 jurisdictional ry frame- by of tribal status reveals that ICWA’s fers to determinations Village 84. Alaska v. Native Tribal Gov’t 87. Id. of Venetie (Venetie II), 522 U.S. 30 (1998). 140 L.Ed.2d (alteration H.R.Rep. 88. See No. 95-1386 at 15 original) (quoting Light, 216 v. Little Wakefield Stevens, Ted Address Before the Alas 85. Senator (1975)). A.2d 237-38 Md. 2, 1997), Legislature (Apr. ka in Senate and Supp. House Joint Journal No. 9 at 1903(8). Mitchell, § 89. See 25 U.S.C. quoted, House Journal C. Donald Village Statutory Con Alaska v. Native of Venetie: History Usurpation? Why struction Judicial (providing extended trib- 90. See id. at Counts, 14 Alaska L.Rev. custody). the field of child al court 54,366 (1993). Fed.Reg. 86.58 suggests post-

work was motivated concerns over the 4. Federal case law that ANCSA, officials, Alaska’s tribes retain non- agencies, pro- “failure State sovereignty territorial that includes special prob- to take cedures into account the power custody disputes. over child lems and circumstances of Indian families legitimate and the interest the Indian argue Ms. John and amici thev preserving protecting tribe in the Indian existence of Indian is linked nonmembers, family wellspring power as the its own the tribe’s over land and future.”91 Thus, power they not to its Although custody dispute members. at the center of Northway Village claim if that even does not scope, this case falls outside ICWA’s Con- occupy country, it can nevertheless gress’s purpose enacting ICWA reveals its adjudicate disputes between its members. villages intent that Alaska Native retain their adjudicate power custody disputes. child Because the traditional reservation-based

structure of tribal life most states forms Act,92 cases, backdrop Tribal Justice enacted in for the federal courts apart have not had occasion tease congressional further evidences the sovereignty ideas of land-based and member- villages govern view that the Native retain ship sovereignty. Consequently, the federal powers. provides mental The Act financial conclusively decisions do not answer support for tribal court activities without question happens of what when a law like drawing distinctions between those tribes separates membership ANCSA and land occupy and those that do completely allowing federally recognized specifically not and includes Alaska Native tribe to relationship redefine its to state and villages recognized as tribes within its governments by eliminating federal the idea scope.93 Additionally, findings Act’s of Indian But federal case law does section, Congress recognizes all “Indian provide significant support for our conclusion possess tribes the inherent to es adju- that federal tribes derive the government,” tablish their own form of matters, dicate internal including domestic justice systems “tribal appropriate [are] custody disputes children, child over tribal adjudication disputes forums for the of af from sovereignty independent a source of of fecting personal property rights,” and they occupy. the land justice practices that “traditional tribal are discussing federal decisions to essential the maintenance of the culture relationship between Indian and trib identity of Indian tribes.”94 sovereignty al indicate that the nature of Congress, Based on the of intent as re- sovereignty tribal from stems two inter Act, ICWA, by vealed the Tribe List and the twined sources: membership tribal and tribal Act, Tribal Justice we conclude that Alaska land. The United States Court has villages Native possess governmental do recognized the dual nature of Indian sover powers over child matters.95 We eignty century half; for more than a next regard- examine federal decisional law that, explained the Court has under federal ing sovereignty guidance tribal to see what law, unique aggregations “Indian tribes are they provide on post- the issue of possessing sovereignty attributes of over Northwa/s jurisdiction. ANCSA territory.”96 both their members and their co-existence, H.R.Rep. (emphasis No. capable 95-1386 at 19 add- duty utes are of it is the of ed). courts, clearly expressed congres- absent a contrary, regard sional intention to the to each (West seq. § Supp.1998). 25 U.S.C. 3601 et (alteration (internal original) as effective." omitted)). quotation marks 3601, 3602(3). § 93. See 25 U.S.C. 3601(4), (6), (7). Id. at Mazurie, 544, 557, 96. United States v. 419 U.S. (1975) (citing 42 L.Ed.2d 706 County 95. See Yakima v. Tribes of Confederated Georgia, Worcester v. 6 Pet. 8 L.Ed. 483 Nation, and Bands 251, 265-66, the Yakima Indian of (1832)). (1992) (holding that "when two [or more] stat- indepen with their freedom authority exer- inconsistent enjoy to only Tribes not their external rela dently their to determine the boundaries of control within cise lands, they possess the inherent powers self-government, also but tions. But the and social regulating their internal “power prescribe including power to and en laws, relations.”97 are of a differ force internal criminal They type. involve the relations ent argue that dissent Mi*. Baker and the Thus, they a tribe. are among members construing the nature many federal decisions powers necessarily as would not such existence of sovereignty view the of tribal mining the existence or country as the critical extent of tribal au- factor in deter- ^[99] lost vvrtue a tribe’s dependent status. fairly thority. But the case law does similarly impor- stress the Other decisions of Indian support view that the existence power regulate internal of tribal to tance prerequisite to the country is an absolute years after Wheel- relations. Three domestic power. sovereign tribal existence of er, in Montana v. United States100 the Court contrary, in of decisions a series To the significance of tribal member- reaffirmed the sovereignty, nature of tribal exploring the importance Native ship reaffirmed the tribal the crucial role has noted the Court “Thus, self-governance: in addition American defining scope of membership plays in offenders, power punish tribal authority. The distinction between power to retain their inherent Indian tribes nonmembers has often been members and membership, regulate do- determine Indi- dispositive factor in federal treated as members, pre- among and to mestic relations jurisprudence. In United States members.”101 rules of inheritance for scribe Wheeler,98 example, held that the Court that a tribe’s The Court has stated enjoy sovereignty than although tribes less rights custody of a child of “determine dependent of them foreign nations virtue falls divorced of the tribe” parents within government, relationship the federal sovereignty.102 inherent boundaries regulate in- power to tribes retain the core v. Reina103 Again in the Court Duro ternal affairs: importance of emphasized the fundamental implicit in which such divesti- The areas noting law’s consis- membership, the federal sovereignty has been held to ture tency describing retained tribal sover- “in involving relations are those occurred its eignty ... of a tribe’s terms and nonmembers an Indian tribe between Riv- deciding that the Salt members.”104 Thus, can no the tribe. Indian tribes jurisdic- Pima-Maricopa tribe without was er freely to non-Indians the longer alienate eligi- criminally prosecute a man tion to They enter into they occupy. cannot land membership, emphasized the Court governmental or rela- ble direct commercial And, and between members foreign as we the crucial distinction tions with nations. held, try recently they non- The court also cannot of the tribe. nonmembers membership importance [criminal] in tribal courts. members noted areas of federal Indian throughout different fact that limitations rest on the These taxation, law, regulation hunting including with dependent status of Indian tribes juris- and criminal court necessarily fishing, and civil jurisdiction is in our territorial Tribe, Apache 455 U.S. Kagama, Merrion v. Jicarilla (quoting 118 U.S. 102. United States v. Id. 1109, (1886)). 170, 894, (1982) 375, 381-82, 130, 21 6 S.Ct. 30 L.Ed. 102 S.Ct. 71 L.Ed.2d 382, Court, (citing 424 U.S. Fisher v. District 1079, 313, 98 S.Ct. 55 L.Ed.2d 98. 435 U.S. 943, (1976)). S.Ct. 47 L.Ed.2d (1978). 2053, 676, S.Ct. 109 L.Ed.2d 495 U.S. omitted). 326, (citations 98 S.Ct. 1079 Id. at (1990). 67 L.Ed.2d 450 U.S. S.Ct. 2053. Id. at omitted). (citation 101 S.Ct. 1245 Id. at diction.105 part adoption pro- isdiction in because “the ceeding appropriately characterized as liti- Supreme applied Court has also gation arising on the Indian reservation.”112 principles specific these context of paragraphs But two later the Court stated authority disputes to handle civil jurisdiction exclusive “[t]he of the Tribal justice systems. power Tribes “have ... quasi-sovereign [derives] from the to make their own substantive law in internal Cheyenne status of the Northern un- Tribe matters, enforce law their own description der federal law.”113 This of Na- may forums.”106 And tribal courts also have sovereignty stemming tive from the tribe jurisdiction disputes to “resolve civil involv theory itself is at odds with the dissent’s nonmembers, ing including non-Indians”107 ability adjudicate that a tribe’s internal when the civil actions involve essential self- disputes premised solely on the basis of its governance membership matters such as country. location within Indian other areas where “the exercise of tribal recogni- Fisher therefore reflects both a authority is vital to the maintenance of tribal tion of territorial sovereignty bases of an integrity and self-determination.”108 The understanding that tribal status itself in- key inquiry, according Court, to the is not adjudicate cludes the internal child whether the tribe is located in Indian coun Indeed, custody disputes. the Fisher court try, juris but rather whether the tribe needs allowing concluded that Montana’s state given diction over a context to secure tribal courts to hear the case between Na- self-governance: “If state-court parents “plainly tive would interfere with the over Indians ... would interfere with tribal powers self-government ... exercised sovereignty self-government, the state through the Tribal Court” and voiced its generally courts are divested of usurpation concern that such “would cause a as a matter of federal law.”109 corresponding decline in the of the provides Fisher v. District Court110 Although Tribal Court.”114 that case took example Supreme recognition Court’s reservation, place on a the considerations of sovereignty of the dual nature of in the case respect noninterference and for tribal forums Fisher, us, law. like the case before was a apply invoked the Fisher court outside of family dispute law between Native American country. parents. Cheyenne The Northern Tribal Court removed Ivan Fisher from his moth- interprets quite dissent Fisher placed er’s home and him with another way. Along different DeCoteau Dis- member, adopt Court,115 who wished to him.111 In County trict Fisher is one of two determining that the Montana state courts decisions that the dissent believes illustrates had no theory Runsaboves’ its that no tribal court adoption proceeding, Court whatsoever can exist without Indian noted that jur- the tribal court had exclusive But support these decisions do not the dis- 686-89, Court, 105. See id. at 110 S.Ct. 2053. Fisher v. District 424 U.S. (1976)). 47 L.Ed.2d 106 Martinez, 106. Santa Clara Pueblo v. (1978) 382, 943, 110. 424 U.S. 96 S.Ct. 47 L.Ed.2d 106 (citations omitted). (1976). Reina, 676, 687, 107. Duro v. 495 U.S. 110 S.Ct. 2053, (1990) (citing 109 L.Ed.2d 693 Santa 383, 111. See id. at 96 S.Ct. 943. Clara, 65-66, 1670; 436 U.S. at 98 S.Ct. Lee, 269, Williams v. 358 U.S. 79 S.Ct. 389, 112. Id. at 96 S.Ct. 943. (1959)). 3 L.Ed.2d 251 688, 390, 108. (citing Id. at 110 S.Ct. 2053 v. 113. Id. at 96 S.Ct. Brendale Tribes & Bands the Yakima Indi- Confederated Nation, 408, 2994, 492 U.S. 109 S.Ct. 106 387-88, Id. at S.Ct. (1989)). L.Ed.2d 343 425, 1082, 115. 420 U.S. 95 S.Ct. 43 L.Ed.2d 300 LaPlante, 9, Iowa Mutual Ins. Co. v. 480 U.S. (1975). 15, 971, (1987) (citing S.Ct. power over its territorial pertains to a tribe’s sovereignty exists that thesis sent’s land, not its members.121 only within about the exis- even less Fisher teaches jurisdiction- narrow involved the DeCoteau equating Indian any kind of rule tence of Dakota’s state of whether South al issue adjudicatory sovereign power. country with jurisdiction any assert could courts only Mon- asked whether The Fisher Court reservation, members on a of tribal conduct juris- any concurrent had basis to assert tana normally the tribe’s exclu- something within adoption pro- over the Runsaboves’ diction expressly stated jurisdiction. The Court sive ceeding; that the tribal court it assumed was presented the case only issue that the jurisdiction, either some form of retained existed;116 the the reservation whether concurrent, stemming from the exclusive or implications of the consider the did not Court right govern itself.122 Because it tribe’s accepted a it existence because reservation’s in- would that state court found had parties that the state stipulation self-governance and with the tribe’s terfere had been ter- jurisdiction if the reservation court, authority of the tribal diminish describing After by Congress.117 minated in the no interest the state had because parties, legal agreement between place events took dispute since all relevant deciding without the Court assumed which land, held that the tribe on Indian the Court one,118 the Court noted accurate was an adop- jurisdiction over the exclusive had parties relied on 2 that juris- footnote imply that But Fisher does tion.123 1151(a) (c) formulating their exclusively §§ in one forum U.S.C. diction must lie “Indian Supreme defines viewed the stipulation. This statute Court another. jurisdic- jurisdic- purposes of criminal before it as one which country” for case only and the issue “gen- unquestioned was tion, the law tion noted that and the Court any Montana had presented was' whether questions of civil erally applies well to as Thus, all. Fisher’s amounts, then, form Footnote jurisdiction.”119 may prerequi- land be a holding recognition of passing little more than —that no site to exclusive tribal interpreting that statute’s —in case law settled whether the way question answers was all meaning scope. That this usual court retains concurrent say 2 is in footnote meant the Court land.124 without such over tribal relations to that by the Court’s reference illustrated II, which cited DeCoteau in Venetie footnote Following and Mon- in the line Wheeler jurisdictional bright-line test but any tana, not for illustrates pair of recent tax decisions holding long-standing that today’s dis- and Fisher leave that DeCoteau generally applies they to both criminal And indicate pute unanswered. Moreover, II court careful to note the Venetie has been civil cases.120 going significance general rule that “Indians any allocative clear that makes general- beyond boundaries have reservation concept of Indian exists in the Fisher, 427, 96 S.Ct. 943. 424 U.S. at 122. See S.Ct. 1082. 116. See id. at S.Ct. 1082. id. at 426-28 & n. 117. See & n. 123. See id. at 387-89 See id. Bartlett, also describes Solem 124. The dissent 44 79 L.Ed.2d 465 U.S. 427 n. 95 S.Ct. 1082. 119. Id. at 3(1984), discussing “jurisdiction over a case jurisdiction over to determine 'lands’ in order Village Tribal Native Venetie 120. See Alaska at 782. But Solem Dissent tribal members.” (Venetie II), Gov’t country for of Indian the existence determines L.Ed.2d 30 applying purpose an Act juris government with exclusive vests the (noting tribes and the n. 1 121. See id. at 952 federal on Indian certain crimes committed diction over reservations, “primary government have federal does not address and thus country” saying but land that is Indian over that Act. See members) (em- except the context of nothing about 2, & 104 S.Ct. added). at 464-65 & nn.1 id. phasis ly subject non-discriminatóry self-governance been held to claims and that the Court applicable state law otherwise to all citizens procedurally was thus foreclosed from con- of the State”125—the source of the dissent’s sidering arguments such did the Court reach principle” “allocative not mean that a its decision.131 —does forego self-gover- tribe must its fundamental custody dispute between Ms. John and country. nance of a because lack of Indian Mr. sovereignty Baker lies at the core of —a In Oklahoma Tax Commission v. Sac and tribe’s “inherent to determine tribal Nation,126 specifically Fox the Court declined membership, regulate domestic relations question to answer the of “whether members, among prescribe and to rules of right self-governance operate Tribe’s could By inheritance for members.”132 deliberate- independently of its territorial ly leaving open govern- the door for tribal pre-empt ability the state’s to tax income ... self-governance ments to conduct internal employee when the does not reside in Indian functions in country, the absence of Indian later, country.”127 years Two in Oklahoma Chickasaw Nation and Sac and Fox Nation Nation,128 Tax Commission v. Chickasaw suggest Northway jurisdic- Village Supreme emphasized question that the Court dispute tion to right hear this because the powers of a tribe’s internal absent Indian children, determine of Indian unlike undecided, implied was but that a tax, “infringes Oklahoma’s motor fuels ability powers tribe’s to retain fundamental self-governance.”133 self-governance important is the more principle. recently year, As as last the Su preme Court reaffirmed the notion that the Chickasaw Nation Court held that existence of Indian disposi- Oklahoma could not a not collect several chal- jurisdiction. tive lenged determining factor taxes within an Indian In reservation but Kiowa Tribe Manufacturing could collect Oklahoma v. living taxes on tribal members Inc.,134 Technologies, outside Indian The court the Court noted held that generally enjoy applicable sovereign immunity tribes state laws’are usu- from civil ally against asserting enforceable lawsuits regardless Natives the ab- contract claims country.129 sence of Indian But the of whether the contracts were formed on or implied also that its result would be different off Indian Although land.135 the case dealt parties’ dispute implicated had the the tribal with a different set of factual circumstances self-governance family concerns present raised than dispute, it is notable that integral law matter self-governance. to tribal the Kiowa Tribe dissenters believed rationale, explaining its “generally applicable’ state laws” “Notably, Court said: the Tribe has not apply as- rule should to hold the tribe here, serted or before the Appeals, promissory Court of suit for a note executed outside infringes that the tax State’s on tribal country.136 Although self- of Indian the dissen governance.” Only emphasiz- after twice immunity ters claimed that doctrine ing that the Chickasaw apply Nation did not raise should not to conduct unrelated to the Jones, States, Apache 125. Mescalero Tribe v. 411 U.S. 132. Montana v. United 145, 148-49, 1267, 1245, 93 S.Ct. (1981); L.Ed.2d 114 101 S.Ct. 67 L.Ed.2d 493 see also (1973). Wheeler, 313, 322-28, United States v. 435 U.S. 1079, (1978). 98 S.Ct. 114, 1985, 126. 508 U.S. 113 S.Ct. 124 L.Ed.2d (1993). Nation, 464, 133. Chickasaw 515 U.S. at 115 S.Ct. (citations omitted). Id. at 113 S.Ct. 1985 128. 132 L.Ed.2d 134. 523 U.S. 140 L.Ed.2d (1995). 129. See id. at 115 S.Ct. 2214. 135. See id. at 1705. Id. at 115 S.Ct. 2214. (Stevens, J., dissenting). 136. See id. at 1705-08 131. See id. at & n. 464-65 S.Ct. 2214. with federal country,137 majority re of the children consistent tion tribe’s ICWA, conc accept territorial as which focuses on the to this narrow statutes such fused similarly accept it to eption.138 membership determining refuse We child’s tribal as a today. jurisdiction.140 allotting Because factor jurisdiction only has matter the tribe of the United States Decisions members, disputes internal of tribal over the that Native support the conclusion authority custody to determine it has may possess nations American eligible only of children who are members or they do not govern to themselves even when membership.141 for country.139 federal deci- occupy Indian language the exis- supporting sions contain sovereignty on either tribal based

tence of concurrent 5. Alaska’s state courts retain jurispru- status. Indian law land or tribal jurisdiction dispute. over this importance of the central dence stresses Although recognize North- we membership powers fundamental adjudicate custody way’s jurisdiction to child family adjudicate law af- internal tribes members, village juris its disputes between custody Decisions disputes. child fairs like Alaska diction is not exclusive. The State of and Fox like Nation and Sac Chickasaiv jurisdiction such dis can also exercise suggest without Indian Nation tribes putes. villages is so like North- This because adjudicate power possess the do way presumably occupy do not Indian coun self-governance hold matters. We internal try, suggests and federal law that the today dispute us type that the before —an jurisdiction over Indians and bar to state custody of the action for determination of presence Indian count Indian affairs is Northway Village— of a member of children country, disputes ry.142 Outside Indian all sovereign Northway’s within squarely falls Alaska, arising whether within State of its regulate the internal affairs of not, general or are within the state’s tribal members. jurisdiction.143 state, Thus as well as the Although Ms. John not a member tribe, adjudicate disputes in its can such Northway Village, argues she A does courts. tribe’s inherent are tribal eligible children themselves for give priority, presumptive courts tribal membership. This is a critical fact that must authority, disputes involving tribal mem re superior be court on determined bers. mand, discuss in Part III.E.3. A tribe’s as we have also state and federal courts sovereignty adjudicate internal Several inherent recognized the existence of concurrent state- custody depends on the domestic matters family law dis- eligibility membership of over tribal membership or for putes parents or both do not reside a focus on tribal affilia- when child. Such one cases, supports the deter- al 1707. federal law 137. See id. tribes over con- mination that senting See nonmembers in some situations. id. at 1705. See States, v. United Montana (1981) (recognizing a 67 L.Ed.2d judge 139. At least one federal has voiced regulate nonmem- power to activities of tribe's ANCSA, enacting opinion Congress in that in relationships with the who enter consensual bers villages sovereignty tended that Native retain members). Here, John consented tribe or its Ms. though sovereignty even was over members such Northway to have this action decided in reach.” Alaska ex "without territorial State of at this time But we need not decide forum. Village rel. Flats Sch. Dist. v. Native Yukon juris- confer her consent is whether sufficient Gov't, (9th Venetie Tribal Cir.1996) (Fernandez, F.3d case, given that the tribal court diction on concurring). J. of the children’s we remand for determination affiliation. 1903(4) (defining “Indian 25 U.S.C. See as a a tribal child” under ICWA child who is Jones, See, e.g., Apache Mescalero Tribe eligible membership). member or- L.Ed.2d 114 parents may an alterna- 141. Consent of both 22.10.020(a). tribal court in child 143. See AS tive basis for goal on in In example, reservation land. For re member children will further the under Skillen,144 Marriage Supreme the Court of federal of the serving both and state law best of Montana whether Montana state of Native American children. considered needs jurisdiction dispute to courts had hear a over example, many For the that of Alas- fact custody the of an child. of the One villages Native far ka’s are located from parties father, was the child’s non-Indian of trial our courtrooms our state courts limits who lived off the After reservation.145 dis- judicial system’s ability respond state to to cussing congressional intent as revealed many needs of Alaska Natives.149 More- ICWA, UCCJA, and the Kid- Parental over, we recognized have that Alaska is home (PKPA)146 napping Prevention Act and ex- “uniquely cultures,” divergent including to law, amining federal case the Montana court today many “Native which remain cultures determined that tribal courts exclusive they prior much were to the infusion of jurisdiction children on over domiciled reser- Anglo-American culture.”150 Because of vation land and “when an Indian child culture, great diversity, geog- this barriers reservation, resides off the court state raphy, language ju- and combine to create a jurisdic- and tribal share court concurrent system foreign dicial that remains and inac- tion.” recog- court Skillen noted that many cessible Alaska Natives.151' These jurisdiction nition of concurrent reflected the problems differences have “created in admin- delicate under of a balance federal law state istering justice system a unified sensitive respect “obligation sovereignty court’s the needs of Alaska’s various cultures.”152 relation [the court’s] tribes jurisdiction, By acknowledging en- we responsibility uphold and enforce laws opportunity villages hance for Native and of this state.”148 cooperate custody the state to the child

Although our sharing Recognizing we base decision in case arena resources. ability on the decisions Su- and tribes to resolve preme Court, we, court, like disputes forums, the Skillen also internal in their own while courts, policy support believe that preserving right considerations our of access to state recognition jurisdiction. only help justice of concurrent Tribal can the administration of custody involving over child cases for all.153 village 144. 287 Mont. 956 P.2d 1 than residents. One-fourth of Alaskans many do live within reasonable reach of 145. See id. at 4-5. services.”); system (noting court id. at 104-11 Alaskans). problems dramatic access for rural 1738A(a). 146. 28 U.S.C. Mann, (Alas- Corp. 150. Calista v. P.2d Skillen, 18; Larch, at 956 P.2d see In re also 1977). ka (4th Cir.1989) (noting F.2d ICWA Congress recognized "discloses that that there See, can be concurrent in state e.g., System, Report Alaska Court courts"); Cobell, United States ex rel. v. Supreme Cobell Advisory Alaska Court Committee (9th Cir.1974) that, (holding 503 F.2d (1997) (“Many Fairness and Access 49 [inter- custody case between tribal where members viewees] believed that courts do not under- reservation, the children reside off the the tribe family stand Alaska Native cultures and struc- and state would share concurrent ”); if (noting .... tures id. at 92 of Alaska 36% explicitly the tribe’s law had not disclaimed trib home). speak language Natives a Native divorce, marriage, adop al tion); Wells, (S.D. Wells N.W.2d Calista, 564 P.2d at 61. 1990) (recognizing juris concurrent state-tribal diction over a action between Native See, e.g., System, Report Alaska Court American and a mother non-Indian father where Supreme Advisory Alaska Court Committee on the mother and children moved off the reserva (1997) (recommend- Fairness and Access 107-08 tion). ing "greatly equality state courts enhance delivery justice system the effective services Skillen, at 18. 956 P.2d associating blending local [] [like resources See, e.g., System, Report system" Alaska Court courts] with the formal court Advisory noting Alaska justice system Committee on that "[t]he western is not (1997) ("Urban always Fairness and ix appropriate prob- Access residents the most model for the areas”). justice system many have far more access to services lems rural Custody Applies D. Tribal Law to Child of concurrent continuing existence Disputes Adjudicated by Tribal lays to a number jurisdiction also rest Courts. Contrary to dissent’s concerns. Alas- doors of “[t]he assertions that dissent’s argue Ms. John and the amici that North- longer all open be to courts will no ka’s law, apply way should be able to its own urban Alaska Natives Alaskans”154 and that custom, resolving including tribal law and adjudicate required their cases be to will juris- custody dispute that falls within its parents live in villages,155Native who remote agree. We diction. Anchorage and not wish avail them- do tribal forum will still distant selves addressing Decisions tribal custody in An- disputes to resolve their able adjudicate internal matters state that tribes Indeed, Superior Alaska Na- chorage Court. “power their to make own substan do not to have any who for reason wish law in internal matters and to enforce tives tive Similarly, in their forums.”158 disputes adjudicated in a court that law own tribal their has stressed that tribal complete and total access to will retain sovereignty precisely it is valuable because system. courts judicial Because state state “to their Native Americans control enables no jurisdiction, there is retain concurrent relations, preserve internal and to their own jurisdiction.”156 “mandatory tribal court unique customs and social order.”159 own jurisdic- of concurrent state The existence Alaska Native tribes have inherent Because inapplicability of the also adjudicate tion reveals sovereignty to internal tribal dis proposed apply principle” putes, “allocative the tribes must be able to their dissent’s Thus, disputes. law to those tribal today. if existed an decision Even there our sovereignty family like over issues relations always rule law must iron-clad that state right enforce law in includes land, apply to outside Natives disputes. resolving today not violate outcome we reach would teaches that “Indians that rule. Mescalero beyond going boundaries have reservation Comity Properly E. The Gov- Doctrine of been generally held non-discrimi- Recognition erns State Tribal applicable natory to all state law otherwise Court Decisions. dissent, citing persua- no citizens.” We must also determine whether authority, mistakenly shape attempts to sive superior have dismissed Mr. court should competing statement into a rule between

this examining identical suit. After Baker’s jurisdictions. jur- But because the exclusive court states afford tribal whether should of Alaska state courts remains unaf- isdiction credit, full judgments faith and we conclude recognition our of concurrent tribal fected comity provides proper that the doctrine jurisdiction, argument in the dissent’s court deciding framework when state courts essentially regard is a straw man. Our this recognize court should decisions. its does not rob state of formulation judicial power over Alaska Na- exercise 1. Full and credit faith tives; rather, ad- state will continue to disputes directly, through dress these either full requires courts to extend ICWA jurisdiction, or in the exercise concurrent credit court faith and to tribal decisions comity. custody proceedings” indirectly, through volving “child the doctrine of Martinez, Clara v. 436 U.S. Dissent at 766. 158. Santa Pueblo 55-56, (1978) 98 S.Ct. 56 L.Ed.2d 106 155. Dissent (citations omitted); also States v. see United 603-604, Quiver, U.S. 156. Dissent at 803. 1196(1916). L.Ed. Jones, Apache v. Mescalero Tribe 685-86, Reina, 159. Duro L.Ed.2d 114 (1990). But, States, term is possession defined statute.160 as we of the United the District above, parental custody Columbia, dispute stated this and the Commonwealth of qualify proceed- does not as a “child Puerto Rico.166 legis- Neither of statutes’ Thus, ing” under full faith any ICWA. ICWA’s lative histories evidence sug- contains provision apply gesting credit does not apply that the laws to Indian tribes. case. provi- Because ICWA’s full faith and credit sion reveals that does not view ICWA, Other than no federal state law “states, Indian tribes as posses- territories or suggests grant should full courts faith sions,” the PKPA does not accord full faith judgments. and credit to tribal court judgments.167 and credit to tribal And in the full provision faith and credit of the federal proof legislature absence that the Alaska only applies constitution As to states.161 one specifically intended the UCCJA to include concluded, recently nothing federal court tribes, principle we follow the of stat- the Constitution’s text or in the debates of utory interpretation instructing that all omis- suggests the constitutional convention sions be treated as exclusions.168 We there- the framers would believed the clause apply fore conclude that the does not UCCJA apply to tribes.162 judgments.169 to tribal Further, legislation implementing federal no applies Because federal or state law Full Constitution’s Faith and Credit requirement full faith and credit to tribal application Clause has extended its decisions, court we turn to consideration of possessions.163 United territories and States comity doctrine. Congress specifically distinguished Because possessions between territories and and Indi- enacting tribes in faith Comity ICWA’s full and clause, legislation credit we do not view this Comity principle is the that “the extending full require- faith and credit courts one give state or will judgments.164

ment to tribal judicial effect the laws and decisions

Similarly, jurisdiction, and the UCCJA another state or not as a matter PKPA, require recognize which obligation, courts to and but out of deference and mutual determinations, enforce certain child respect.”170 comity governs doctrine apply only recognition to “states.”165 The two statutes afforded courts in the state, territory define “state” mean a or judgments foreign United States to na- 1911(d). § 160. See 25 U.S.C. to full faith and credit under certain circum and pur stances tribes are similar states for Const, IV, § 161. See U.S. art. poses sovereignty jurisdiction). and We are unpersuaded by reasoning of the Larch court Marchington, 162. See Wilson v. F.3d light contrary of the we evidence discussed (9th 1997). Cir. above. § 163. See 28 U.S.C. 1738. Singer, 168. See Norman J. 2A Sutherland Statu- (5th ed.1992). tory § provides faith Construction ICWA’sfull and credit 47.23 clause States, State, every every that "[t]he United terri- States, tory possession every of the United interpreting 169. State courts their own versions give Indian tribe shall full faith and credit to the contrary of the UCCJAhave reached conclusions records, acts, public judicial proceedings See, regarding meaning of the term "state.” 1911(d) any (em- § Indian tribe....” 25 U.S.C. Court, e.g., Superior 152 Ariz. Martinez added). Wilson, phasis See also 127 F.3d (App.1987) (holding 731 P.2d that an (reaching comparing the same conclusion after qualifies territory tribe as a of the United 1738). language § ICWAand purposes States thus for is a state UCCJA); Tribe, Sengstock Apache v. San Carlos 1738A(a); § 165. See 28 U.S.C. AS 25.30.120. (App.1991) 165 Wis.2d 477 N.W.2d (holding that the term "state" does not include 1738A(b)(8); 166. See 28 U.S.C. AS 25.30.909. tribe). an Indian Larch, (4th 167. But see re In 872 F.2d 1989) Inc., (holding Ford, apply Cir. that the PKPA does 170. Brown v. Babbitt 117 Ariz. judgments tribes (App.1977). because tribal court are entitled 571 P.2d proceedings complied with due of abso- tribal court Comity neither a matter “is tions.171 hand, process, courts should consider whether the nor of mere obligation, on the one lute proceedings will, parties received notice good upon the other.”172 courtesy and granted tribes, depen- they whether were a full and Although Indian as domestic countries, impar- nations, opportunity fair to be heard before an foreign differ from dent proceedings comity tial tribunal that conducted the Ninth agree with the Circuit we regular An “analytical in a fashion.178 indication that framework affords the best judiciary opposing was dominated judgments.”173 Numerous recognizing tribal suggest process litigant would that due had have reached the same conclu- state courts that, general as a been violated.179 therefore hold sion.174 We

rule, respect tribal court our courts should analysis in process But this due comity doctrine.175 decisions under way requires procedures no tribes to use circumstances, comity identical to ours in their courts. The limited certain however, judg analysis an invitation for our courts to recognition of tribal is not conclude, deny judgments recognition to tribal based may inappropriate. We ments Circuit, proced paternalistic proper notions of that our courts on as did the Ninth Instead, deciding par enforcing ure.180 whether a tribal court should refrain from ty process, superior due personal if court lacked was denied courts judgments the tribal require respect A strive to the cultural differ subject jurisdiction.176 should or matter jurisprudence, as possess personal ences that influence tribal that a tribal court ment recognize practical expe the limits litigants appearing it well as to jurisdiction over before by systems.181 court will not be rienced smaller court the tribal ensures adjudicate disputes the upon called Additionally, superior courts should parents children live far from their who deny judgments recognition not to tribal sim villages and have little or no contact they disagree outcome ply because with the villages. with those they judge reached the tribal or because they the the Ninth conclude that could better resolve agree We also with Thus, suggesting dispute at the that state courts should afford no issue.182 Circuit —as any litigant superior court did this case—that state comity proceedings in which is “significant deciding proper because process.177 In whether was denied due (Third) Foreign Guyot, Relations v. 179. See Restatement 171. See Hilton Law, (1986). § 482 cmt. b S.Ct. 40 L.Ed. 95 163-64, 16 172. Id. at Wilson, F.3d at 811. 180. See Marchington, 127 F.3d 173. Wilson (Third) Relying of For- on Restatement (9th 1997). Cir. Law, eign held the Ninth Circuit also Relations deny federal courts have the discretion that recognition Ford, See, e.g., Fredericks v. Eide-Kirschmann (i) judgment judg- to a tribal if Lincoln, Inc., Mercury, 167-68 462 N.W.2d fraud; (ii) judgment ment was obtained Bear, (N.D.1990); 370 N.W.2d Mexican v. Circle judgment that is enti- conflicts with another final (S.D.1985); Custody Sengstock v. San Car- (iii) judgment recognition; inconsis- tled to is Tribe, Apache Wis.2d 477 N.W.2d 310 los parties’ contractual choice of fo- tent with the rum; (App.1991). (iv) recognition judgment, of the or or based, against upon it is cause of action which is Wilson, 127 F.3d at 809. See public policy United States or of the sought. recognition See which forum state in Wilson, (establishing factors as 176. See id. at 810 these at the facts of 127 F.3d 810. Because reviewing guidelines for the federal courts after any implicate discretion- do not of these this case decision, (Third) of the Hilton the Restatement factors, ary which do decide the extent to we Law, principles Foreign of Indian Relations also, discretion, state courts could their our law). recognition to tribal decisions based deny them. 177. See id. 202-03, Hilton, Hilton, 16 S.Ct. 139. 182. See 159 U.S. at 16 S.Ct. 139. 178. See expertise required appeal will be to resolve this cause the record on contains no infor- dispute,” comity place membership difficult has no mation about of the analysis. procedures children the review available Northway in the Tribal Court. We therefore comity analysis Although the is not superior remand to the court to allow it to disregard superior an invitation for courts to application consider Mr. Baker’s claims in its they substantively tribal decisions with which comity of the doctrine. disagree, comity analysis, properly when applied, does allow state courts to refuse would, however, pro We like to against a tribal enforce order that “is superior guidance vide the court re public policy of the United States or the First, solving although these claims. this is recognition forum in which case, not an we ICWA conclude ICWA sought.”183 comity analy aspect This provides appropriate the most test for decid lay sis should to rest the dissent’s concern ing when a tribal court has matter today open that our decision will the flood particular custody dispute. over a gates to tribal decisions that are ICWA, fundamen Under the relevant factor is the tally public policies inconsistent with the un Thus, agree child’s tribe.186 we with Mr. derlying ignore Alaska law.184 But we would Northway jurisdic Baker that the court had meaning sovereignty the fundamental tion over this case if the children are systems justice insult tribal to reason that eligible membership members or are because tribal law is different it is inferior.185 village. In determining the children’s status, membership superior court should Applying comity doctrine in this apply tribal law.187 case Second, appeal we do not decide argues superior Mr. Baker that the court process requires whether due tribal courts to recognize Judge should decline to Titus’s de- provide appellate process. an or review comity cision under the doctrine for two rea- issue, parties fully have not briefed this First, sons. he contends that because his suspect conflicting we exists. Village, children are members of Mentasta Although Foreign the Restatement of Rela- Northway Village, rather than the tribal suggests foreign tions Law courts must court lacked matter over provide comport access to review in order to Second, dispute. he maintains that process,188 Supreme with due Court has Northway’s system tribal court does not process require held that due does not comport process with due it because does not systems provide appellate sys- court an provide appellate procedures. superior If tem.189 court finds re- superior Northway court never had the Village mand that does opportunity arguments appeal system, address these an or review it will need to through determine, comity the framework briefing, doc after detailed whether Further, trine system as we have outlined it above. the absence of such a violates due we are unable to resolve process.190 these claims be- Wilson, (1978) (noting 127 right F.3d at 810. "[a] tribe's to define its membership purposes long own for tribal

184. See Dissent at 801-803. recognized been as central to its existence as an independent political community”). 185. The dissent's concerns about the race to the appear specula- courthouse overstated and (Third) Foreign 188. See Restatement Relations application merely tive. To view of tribal law as Law, (1986). § 482 cmt. b attempt to circumvent state laws such as Rule support guidelines essentially 90.3’s child argue inadequate, that tribal courts are a conclu- See, S.L.J., e.g., v. M.L.B. 519 U.S. 117 soundly rejected by sion federal laws such as 136 L.Ed.2d 473 ICWA. recognize 190. We that Ms. John considers the See, 1903(5). e.g., 25 U.S.C. merely tempo- tribal court's order to have been Martinez, rary, posed 187. See Santa Clara Pueblo v. and therefore believes that the issue 72 n. is whether state courts should be able to interfere

765 court to determine whether the tribal court’s IV.CONCLUSION custody dispute resolution of between jurisdiction to Tribal courts in Alaska have recog- Ms. and Mr. Baker should be John involving adjudicate disputes comity. nized under the doctrine of jurisdiction is concurrent members. This MATTHEWS, Justice, joined with that of the state courts. We therefore Chief COMPTON, Justice, superior dissenting. REVERSE and REMAND TABLE OF CONTENTS

I. Introduction. Setting.

II. Historical

III. How This Be Decided . Case Should Summary Majority’s Reasoning.

IV. Principle The Allocative of State and Tribal Power. V. Principle Component A. a Fundamental The Allocative Is American Indian Law. Supreme Traditionally B. The Court Has Viewed Whether or Not a Case Arose Country in Indian as a Threshold Issue. Country Concept Encompasses C. as a Jurisdictional Tribal Power over Both Tribal Lands and Members. Majority’s Internally Regard D. The Decision Is Inconsistent with to the Importance of a Territorial Basis for Tribal . Court Jurisdiction Country Prerequisite Adjudicatory VI.Indian Is a for the Exercise Tribal Court Authority.'. A. The Has Never Held that a Inherent Powers Be Tribe’s Can Exercising Adjudicatory Authority the Basis for Tribal Outside of Indian Country. Recognized B. At Least Two of the Inherent Powers United States Beyond Country. Wheeler Do Not Extend Criminally 1. A Tribe’s Inherent Power to Sanction Its Members Does Not Country Extend of Indian . Outside Regulate Among 2. A Inherent Tribe’s Power to Domestic Relations Arising Members Does Not Extend to Outside of Indian Cases Country. C. DeCoteau. pending proceedings. provision instructing tribal court It is unclear cludes a state courts to re Judge to us from the record whether Titus con- custody exercising jurisdiction frain from over a temporary her sidered order to be or final. In already being litigated dispute another that is system, superior regularly the state courts issue 1738A(g); § See 28 U.S.C. AS 25.30.050. state. custody appeal- orders that are deemed final and fact, recognized this court has that the UC- though provide able even orders prohibition against contemporaneous liti CJA’s will be re-examined when a child reaches school gation multiple strong forums is so that an See, Lawson, age. e.g., West v. 951 P.2d jurisdic decline to exercise Alaska court should 1998). (Alaska 1201-02 We therefore treat the pending tion over a case in another state’s court purposes comity tribal order as final for of our even if it is unclear other state analysis. jurisdiction. matter See v. Rex Rexford we But note that the result in this case would (Alaska 1980) ford, (citing P.2d regardless be the same of whether the tribal Note, Prefatory Uniform Laws Annotat UCCJA temporary Although order was or final. the UC- 116-18). policy Applying ed at conclusions apply CJA and the PKPA do not to tribal court acts, superior embodied in these believe that we orders, policy underlying rationale these acts interfering pending from courts should refrain is instructive. Both the UCCJA and the PKPA proceedings absent unusual circum tribal court prevent part litigation were enacted in stances. Once a tribal court has reached a final decision, custody dispute separate jurisdictions. same 1738A; 25.30.010, comity doctrine will determine the See 28 U.S.C. AS Historical enforceability Statutory Notes. Each of the statutes decision's in state court. in

D. Fisher. E. Other n 1. Fisher Fisher Does n Citation Iowa Mutual Fisher try Case . Law. Language n Meaning. Not Concern Concurrent State Jurisdiction. Does Not Fisher Support Does Not Jurisdiction Outside Persuasively Reinterpret Indian Coun- OO cr -q ^[00] -q go OO OO OO go -o ox VII. A. B. Executive 5. The Indian Child Welfare 3. The Tribe List Statutory Analysis. Executive 1. The Entitled ANCSA. b. The a. The Tribal Justice to This Case. ICWA Should Not Canon Construction gress Built into Statutory Authority Advocacy Majority Special Act. as to the Deference. Act. Decision ICWA. Be Act Extrapolated... Relied on Extent of Tribal Favoring Ignores (ICWA). Essential Protections Which Con- Native Americans Is Majority. Jurisdiction Is Not Inapplicable -3 CO -3 CO -3 h-i o CO CO CO CO COH CO CO M CO W CO o H Assuming Sovereign Have Inherent Power to Hear VIII. Even that Tribal Courts Country, Majority Custody Arising in Decision Is Child Cases Not It Still Erroneous Because Enables Tribal Court to Utilize Power Over Non-Tribal Member. -3 CO ox Sovereignty Only A. Case Law: Tribal Inherent Powers Relate to Tribal -q Members. CO05 Exceptions Apply. B. -3 -3 The Montana Do Not CO Subject Matter Be C. Absence Jurisdiction Cannot Waived. CO00 D. Tribal Court Jurisdiction Over Nonmembers Denies Access State Courts Unpermitted on the Basis of an Racial -3 COOO Classification. Policy Court-developed Arguments Inappropriate Upon IX. are an Basis Which to Base Tribal Court Jurisdiction. Applies Country X. State Law Outside Indian . OO o o A. Case Law.. OO o o Requires Applied B. 4 of Section Public Law 280 the Laws Tribal Court Must be Consistent with State Law. ooo H-1 Tonvpkins C. The Rationale of Erie v. . oooto XI. Conclusion. . History Analysis P.L. .. .

Addendum: Moreover, provided. I. Introduction and it has not so United States Court has twice held jurisdiction Does inherent tribal over cus- jurisdiction custody that inherent tribal tody beyond country? cases extend Indian only applies arising to cases within Indian majority “yes,” concluding answers country. sovereignty prevails Congress tribal unless Today’s opinion changes society. Alaska provides My otherwise. answer is “no.” longer applies every Alaska law no to Alas- principles Under established of federal Indi- kan. The doors of Alaska’s courts will no law, governs Indian law outside of longer open all be Alaskans. More than otherwise, children,1 Congress provides regardless unless one-sixth of Alaskan of 621,- Labor). addition, population Dep’t Department 1. Of Alaska’s estimated 1998 of 400, 104,085 30,000 are Native Alaskans. See Alaska Labor estimates indicate that more than Estimates, Indians, Eskimos, Population Popula- Overview: 1998 Native Alaskan and Aleuts re- (Alaska Ethnicity, tion Estimate Race and sided outside of Alaska 1990. See Alaska reside, subject they parent will be to the laws one where tribal member. The village organizations. one of 226 tribal eligibility also holds that a child’s for tribal adults,2 alone, More than one-sixth of Alaskan re- membership, taken is a sufficient basis reside, subject gardless they will be where jurisdiction.3 Thus, any for the assertion of to the domestic relations laws of one of 226 custody dispute involving eligible a child for laws, village organizations. These membership, regardless of the mem- unwritten, may written or be different from bership parties, status of the adult will fall state, they may the laws of the indeed con- coverage opinion. within the of the flict with the laws state. But their (2) That custody when tribal courts decide statewide, beyond, reach will be and even disputes, law controls even where it is cities, towns, governing cases arise inconsistent with state law.4 villages may be hundreds of miles which village ap- from the whose tribal laws are (3) (P.L.) 280,5 And that Public Law which plied. family And the law cases of more than grants pri- Alaska exclusive one out of six Alaskan children and adults arising civil country, vate cases in Indian adjudication now will be apply does not to this case.6 System, Alaska but in the tribal courts villages. of one of 226 Some tribal court disagree I with the first two conclusions fairly. cases will be decided will not Others developed length reasons in this dis- only remedy aggrieved be. But the Alaskans sent. application conflicting laws or un- conclusion, respect With to the third re- “comity"’ fair pursue decisions will have is to garding my P.L. observations are as litigation through in the state courts. Relief grants follows. P.L. 280 the State of Alaska uncertain, vague will doctrine hard to criminal and civil over cases aris- obtain, expensive. ing country. in Indian have We held that today’s opinion long step Because takes a exclusive, grants P.L. 280 Alaska rather than away goal from the Alaska constitutional merely jurisdiction.7 appel- concurrent equal rights contrary under the law and is argue lant and the amici this case law, importance

federal I dissent. Given the holdings wrong these are and that tribes system of this case to the future of Alaska’s jurisdiction. have concurrent ofMost their justice, my greater I set forth views briefing point. is devoted to this P.L. length normally required appropri- than is however, arising focuses on cases in Indian in dissenting opinion. ate country,8 present and the case does not arise Today’s opinion holds: country. Why in Indian then concern (1)That jurisdiction, tribal courts appellant with P.L. 280? The and the amici sovereignty, adjudicate recognize based on inherent could not have in- custody child cases which arise outside of tended tribes to have more outside of country, involving children who are than within Indian either eligible tribal members or for tribal Thus if Alaska has exclusive membership. private custody Such cases involve decide cases which arise disputes parents has, country, by necessary implica- between who are tribal it members, tion, parents and between private when exclusive to decide Estimates, 15, 1953, 83-280,

Population Popula- August Overview: 1997 5. Act of Pub.L. 67 Stat. (codified 1162, Group, § tion Race and Tribal Alaska and U.S. as amended at U.S.C. 1.5, (Alaska 1360). Dep't §§ § Table at 23 25 U.S.C. 28 U.S.C. Labor). Op. 6. at 747-748. 1, Population Overview: Estimates at su- State, Village Dep’t 7. See Native Nenana v. pra note 1. Servs., 219, (Alaska Health & Soc. 722 P.2d F.P., 1986); (Alas- In re 843 P.2d 1215-16 Op. at 759. 1992). ka 1162(a) (1994). Id. at 761. 8. See 18 U.S.C. always been to the arise of Indian Natives have cases which outside non-Natives.11 These laws country. same laws as always only by been administered terri- over- opinion has not Since open torial and state courts to Native and cases, might it ruled our P.L. 280 be suffi- Congress, passing in non-Native alike. Thus independent cient for me to observe that one in not focus on tribal court ANCSA did why wrong it opinion is that reason played courts had because tribal necessary implication. conflicts with this legal history. significant role in Alaska’s no fully arguments But in order to answer the concerning appellant of the and the amici history of Government-Native rela- my I this issue in P.L. 280 set forth views on in been recounted in detail tions Alaska has I opinion. an addendum to this There ex- Village in Stevens v. Alaska Man- Native plain previous properly cases9 were that our agement Planning,12 and Metlakatla Indi- & decided, grants Alaska and that P.L. 280 Community, Reserve v. Annette Island private child custo- exclusive mainly I will here to the con- Egan.13 refer dy arising country. in cases from this histo- clusions that we have drawn ry, which rather than to details on Setting II. Historical conclusions are based. dissent, body I In the of this take direct Village stated in Native that We Stevens majority’s that trib- issue with the conclusion history relationship “the between the al courts have to hear child cus- government up Natives federal and Alaska tody arising in cases not To Reorganiza- passage of the Alaska Indian case, begin I set the context of this with a (1936) Act, 49 that tion Stat. 1250 indicates history brief statement of the of Govern- Congress intended that most Alaska Native ment-Native relations Alaska. Without groups sovereigns.”14 treated not be assume, might such a statement one based “[Njeither Reorganization Alaska Indian majority opinion, before Alaska Act, subsequent Congressional nor acts have (ANCSA) Native Claims Settlement Act signaled change non-sovereign from to sov- “adjudicat[ing] disputes tribes were domestic ereign supported status.”15 We this conclu- members,” arguing I between and that am sion with detailed examination court Congress passing ANCSA decisions and enactments of jurisdic- intended “eradicate tribal court Legislature, indicating the Territorial all family tion over law matters.”10 Neither governed by general Alaska Natives were assumption would be correct. rather than law.16 that a We noted Beginning assumption jurisdic- proviso Reorganization with the of the Alaska Indian 1936(IRA) applicable tion over Alaska in Act of which United States was 1867, throughout history groups explicitly Alaska’s as a terri- most Alaska Native stated tory, they recognized since had statehood Alaska not been as tribes.17 supra Village Statutory 9. See note 7. Venetie: or Judi Constmction Counts, Usurpation? WhyHistory cial 14 Alaska Op. at L.Rev. 353 recognized 11. State law has accommodated and 14. 757 P.2d practices. certain traditional Native For exam- traditional, ple, adoptions Native uncontested 15. Id. recognized proceedings. have been See, in state court Mann, e.g., Corp. Calista 61- 564 P.2d (Alaska 1977). 16. Id. at 34-41. (Alaska 1988).

12. 757 P.2d 32 proviso 17. Id. at 40. The stated: (Alaska 1961), PROVIDED, part, groups 13. 362 P.2d 901 rev’d That of Indians Alaska (as (1962) May recognized prior U.S. Metlakatla) 1936 as bands tribes, part, Organized Village having 'd in or but a common bond of occu- aff of 60, 562, association, Egan, pation, Kake v. or within a 369 U.S. residence (1962) (as Angoon). neighborhood, community L.Ed.2d 573 well-defined or ru- Kake and Mitchell, district, may organize adopt See also Donald C. Alaska v. Native ral constitu- following points by quoting reiterated the in Village We We also noted Native Stevens of opinion: from our earlier Metlakatla that a section of the Alaska IRA authorized Secretary designate of the Interior to as The United States never entered into previ- reservations areas of land which had any treaty agreement type or similar with ously by been reserved executive order for any in group of Indians Alaska. None of occupancy the use and of Alaska Natives or appellant the Indians of have communities actually occupied by which were them.19 exempt by ever been from taxation designated.20 Some reservations were so Territory or State Alaska. Crimes com- reservations, These and the earlier reserves always mitted in Indians Alaska have reservations, designated that were not as punished by been the territorial and state clearly meet the definition of “Indian coun- courts.... There are not now and never 1151(b) try” codified in 18 U.S.C. have been tribes of Indians Alaska as “dependent they Indian communities.” But term is used in federal Indian law. tribe, independent thought beyond No were not nation or be areas Alaska.[18] power recognized has been reach of state law.21 Ernst, by-laws tions and and to Roger Sec'y receive charters of 21.See Letter from Asst. incorporation Interior, Celler, Chairman, and federal [sec- loans under to Hon. Emanuel Reorganization tions of the Indian Act of Judiciary, Representa Comm. on the House of 1934], 25, (Feb. 1958), 58-1872, S.Rep. tives No. at 3 Id. at 39-40. (1958), reprinted in 1958 U.S.C.C.A.N. 3348-49 (“[T]he general understanding had been that the (citations omitted). 18. Id. at 35-36 As we ob- many villages native in Alaska were not Indian Stevens, Village served in since Metla- Native country, general practice and it had been the for respect katla was reversed with to Metlakatla and apply Territorial officers to Territorial law in the Angoon, affirmed as to Kake and the statement Mitchell, villages.”); supra native 13 at note 372- recognized that no had tribes been in Alaska was surprising “dependent 374. This is not since because, held, Supreme inaccurate as the Indian communities” formulation is taken from Congressional had Metlakatlans received rec- McGowan, the 1938 case of United States v. ognition. Id. at 36. We noted that "in all other (1938), 82 L.Ed. 410 however, respects, legal conclusions in Metla- parcel which the Court held that a small katla are accurate.” Id. The Court in purchased Nevada which had been the federal deciding Metlakatla made number of state- government needy Indians was Indian coun concerning ments Government-Native relations try designation but that this did not mean that expressed, in Alaska consistent with the we views including: state was retracted. The Court stat finding ed that its of Indian Alaska, The Indians of southeastern who very substantially adopted have and been deprive does not the state of Nevada of its civilization, adopted by the white man’s were sovereignty question. over the area in position never in the hostile and isolated government federal does not assert exclusive many early tribes in other States. As as 1886 colony. within the Enactments of judge, holding subject federal Alaskan Indians government passed protect the federal Amendment, to the Thirteenth denied that the guard opera- its Indian wards affect the principle sovereignty Indian national enunci- tion, colony, within the of such state iaws as Georgia ated in Worcesterv. 483, 6 Pet. 8 L.Ed. conflict with the federal enactments. Quah, applied to them. In re Sah 31 F. conception Id. at 58 S.Ct. 286. This of a (D.Alaska [1886]).... Alaskan Indians “dependent state’s Indian communi citizens, voting occupy are now some of whom changed years. ties” has “state law prominent public govern- office in the state applies except preempted” approach where Metlakatlans, us, ment. the State tells general McGowan has evolved into a ex rule taxes, always paid prac- in contrast to the pressed recently by most the United States Su prescribed tice described and for other reser- preme jurisdiction” “primary Court in terms of always vations ... and it has been assumed country "rest[ing] in Indian with the Federal the reservation is to state laws. ..., Metlakatla, Government and the tribe and not (em- 369 U.S. at 82 S.Ct. 552 added) (citations omitted). Village phasis States”. Alaska Native Gov’t, VenetieTribal omitted). (1998) 19. 757 P.2d (citation at 40. 952 n. Matal, seph History D. A Revisionist Jo Mitchell, Country, 20. Ten 14 Alaska L.Rev. reservations were created. See 314-38 supra (1997), change note 13 at 366-371. describes this in detail. thought apply all to Alas- challenged in in Alaska law was assumption was This non-Native, kans, in case and the of In re McCord.22 both Native and the case That statutory rape of prosecution volved were decided Alaska of all Alaskans cases resided, and committed who two Natives assumption of The courts.28 offenses, alleged a reserve created their on in 1971 was Department of the Interior village encompassing the by order executive granted P.L. exclusive a consti Tyonek had been issued Tyonek. of villages Native And Alaska to the state.29 the Alaska IRA. The defen tution under recognition as tribes. received formal had not Tyonek was Indian contended that dants le- developments of considerable But three beyond the reach of country and was thus place passage after the gal significance took Territory Alaska and that of the of laws First, mid-1970’s the of extending certain federal ANCSA. the federal act country apply its field and Department did of Interior reversed crimes to statutory rape.23 Territorial District Court grant of concurrent decided P.L. 280 was a arguments Judge McCarrey accepted these jurisdiction to the rather than exclusive against charges the defend and dismissed by adopted This view was states.30 ants.24 Village Venetie Ninth Native Circuit of IRA).31 (Venetie v. Alaska I.R.A. Council con- While the McCord decision disturbed assumptions and threatened ventional Second, Department Interior void at least on leave a law enforcement Secretary Deer adminis- through Assistant occupied vil- those reserves which were Native vil- tratively recognized 226 Alaska constitutions, IRA its imme- lages which had sovereign lages as tribes.32 year short-lived. Within a diate effects were Territory of Alaska Congress had added the third, in Alaska ex And the Ninth Circuit governed P.L. 280.25 to the list states v. Native rel. Yukon Flats School District action, response to the McCord This taken (Vene Village Tribal Government Venetie decision, and civil the criminal laws extended I),33 land con ruled that at least some tie territory to Indian under the veyed qualified as Indian under ANCSA courts.26 of the territorial administration setting the historical in 1971 This was conjunction promised these events passed revoking all reser- when was ANCSA significant potentially enormous to have sovereign- except Metlakatla. Native vations forty-four law, consequences. More than million issues, jurisdic- ty tribal court (an acres area about the size of the State scope within the of ANCSA.27 tion were not status, 1957). (D.Alaska any, ing governmental if various F.Supp. groups. Native There's not one reference sov Id. at 133-34. ereignty Conference in ANCSA or in the 1971 report.” Amend the Alaska Native Claims To Attorney ar- Id. at 136. Assistant Hearings on S.2065 Settlement Act: before gued, assumptions with the dominant consistent on Public Lands the Senate Comm. Subcomm. described, Tyonek was not which I Natural'Resources, Energy Cong., 99th 2d Alaska natives are in a and “that (1986). Sess. 329 position different as concerns the offenses than the Indians the United criminal Village Manage- v. Alaska 28. See Native Stevens proper.” Id. at 134. States (Alaska 1988) Planning, ment & 757 P.2d 85-615, August Pub.L. No. 25. Act of (discussing setting). historical (codified at Stat. 545 as amended 18 U.S.C. 1321-26, § §§ 25 U.S.C. 28 U.S.C. Addendum, 812-813. See infra 1360). Addendum, 30. See id. at 813. at 807-808. See infra Stevens, prime As Ted one of the Senator (9th Cir.1991). 31. 944 F.2d 548 ANCSA, when sover- architects of stated in eignty was an issue: "ANCSAwas and is land Fed.Reg. 32. See 58 364-69 special rela- settlement. It did not terminate the tionship between Alaska Natives from the Feder- (9th Cir.1996). any questions concern- 33. 101 F.3d al Government or resolve Washington) conveyed Supreme were under ANCSA. Court’s decision Venetie virtually every village recog- Native meant Since II that there would not be numerous sovereign Secretary nized as Deer re- reservation-like enclaves in Alaska. But in conveyance, might ways majority’s ceived an Alaska today ANCSA some decision will have contained 226 semi-autonomous consequences nations. have broader than an affir- spanning spectrum State functions a broad of mance of the Ninth I Circuit’s Venetie deci- might criminal and civil laws have been sion would have had. If there were Indian villages enclaves, transferred to the within en- these would be claves. confined to the enclaves. But without the geographical enclaves, today’s limits of under setting This then was the in 1998 when the statewide, decision tribal extends Supreme United States Court decided Alas beyond. members, It follows tribal chil- Village ka v. Native Venetie Tribal Gov eligible membership, dren for par- and their II).34 (Venetie ernment In that case the they ents wherever reside. government sought impose about $161,000 in covering taxes commercial activi III. How This Case Be Should Decided village ties within the tribal on a contractor building a state school on tribal lands trans turning critique majori- Before to a of the ferred under ANCSA.35 The Ninth Circuit ty’s reasoning I will affirmative form question— had noted that the ultimate how I think this case should be decided. “whether Venetie has the to tax claims, Appellant majority concludes, and the occurring territory- activities within its Northway sovereignty has inherent turns on whether occupies Venetie regulate among domestic relations mem- country”.36 The circuit court had concluded unquestionably bers.42 Tribes have certain that Venetie’s ANCSA lands were Indian powers which derive from inherent sover- country.37 eignty. notes, example, For as the power tribes regulate have the the conduct Supreme The United States Court re- laws, through they members criminal have versed, holding that a tribe’s ANCSA lands power to determine their own member- country.38 Referring are not Indian to the ship, they power have over the domestic “dependent Indian communities” definition members, they relations of their have 1151(b), 18 U.S.C. the Court held that a power prescribe in- enforce rules of two-part applied. test The lands must have members, they heritance for their government been set aside the federal all, any, to tax.43 But do or land, the use of Indians as Indian and the powers beyond country? these extend lands continuing must be under federal su- Specifically, question in this case is: perintendence.39 part Neither of the test adjudicatory power Does the to decide the respect was met with to ANCSA lands.40 custody disputes parents whose children ANCSA revoked all reservations Alaska apply arising are tribal members to cases not except Metlakatla and transferred lands to country? in Indian private corporations state-chartered Native without restraints on alienation. in- question And This is a of federal law. But continuing superintendence, stead of federal reports there is no need to search the objective one of ANCSA was to avoid lower federal courts for an answer. The “lengthy wardship trusteeship.” United States Court has answered 34. 522 U.S. Id. at 954 & n. 5. 40. Id. at 955. Id. at 951. 41. Id. at 955-56. I,

36. Venetie 101 F.3d at 1290. Op. 42. See at 748-749. at Id. II,

38. Venetie 118 S.Ct. at 955-56. Id. 755-756. Federal the tribe and the Government.... it, that a tribe’s inher- The answer is twice. hand, adjudicate cases of are power to if the lands ent On the other extend to eases not reservation, jurisdic children does not continuing within a arising in Indian State, except for those land tion in the allotments, the are “Indian parcels which Court,44 County In v. District DeCoteau extin to which have not been Indian titles juris- recognized court that tribal the Court concerned, § 1151 is guished. ... While custody proceed- apply not diction would residing in involving face, jurisdiction, not ings only Indian children criminal its country. the reservation Indian Because ap recognized generally has that it Court had parent and children resided where the jurisdiction.” plies questions of civil as well to 0] rather than terminated, the state court been [5 jurisdiction.45 court had the tribal examples specific are and Fisher DeCoteau Court,46 the Court In Fisher v. District princi- the “allocative of what I refer to as children upheld court allocating govern- principle ple” basic —the court dispute concerning whether responsibilities as between states ment jurisdiction, “all a tribal court had because principle allocative holds that tribes. The all rele parties resided on the reservation at general- are Indian state laws within that as be times.”47 The court stated vant applicable Indians unless Con- ly not to tribal appropri “it is tween state and tribal courts appli- predicate gress explicitly provided on the residence for their ate to has litigants.”48 cation, while outside of Indian apply authority generally does not unless unequivocally and Fisher Thus DeCoteau Congress clearly expressed that has power over child teach that a tribe’s inherent apply.51 Congress has should arising in custody limited to cases cases is jurisdiction in child custo- provided for tribal country. Indian dy disputes parents of Indian between Supreme It is coincidence that no country. arising of Indian children outside in- making decision Court allocative general on the allocative Therefore based 2 De- volved in Venetie II cited Footnote specific application principle, as on its as well II The Court Venetie stated: Coteau. custody cases DeCoteau Fish- to child country] “Although this definition Indian [of er, Northway not have tribal court does by criminal its terms relates to federal jurisdiction in case. jurisdiction, recognized that it also this we have juris- generally applies questions of civil as the one at here. See diction such issue Reasoning Summary Majority’s IV. County Tenth v. District

DeCoteau Dist., 425, 2, 427 n. S.Ct. Judicial 420 U.S. can be ex- The rationale (1975).”49 1082, 43 L.Ed.2d 300 Footnote pressed syllogisms. in two The first is as DeCoteau, cited the Court Venetie follows: II, supplies complete pres- to the answer (1) ent ease: sovereignty (apparently Tribal exists asserted) unless wherever it is question If the lands in are within a “reservation,” unambiguously expressly divested continuing II, 425, 1082, 49. Venetie 118 S.Ct. at 952. 44. 420 U.S. 95 S.Ct. 43 L.Ed.2d (1975). DeCoteau, S.Ct. 1082. 420 U.S. at 427 n. Id. at 427-28 & n. 95 S.Ct. 1082. See, e.g., Oklahoma Tax Comm’n Chickasaw U.S. Nation, (1995) Apache (quoting Mescalero L.Ed.2d 400 Jones, Tribe v. Id. at 389 n. 96 S.Ct. 943. (1973)). explain I 36 L.Ed.2d length V of this dissent. principle at some in Part Id. sovereignty type syllogism

tribe of in the of case at wrong The second in several respects. particular, issue.52 In premise the second powers treats all the inherent tribal of self- (2) Congress expressly has not and unam- government fact, alike. some inherent biguously divested Alaska tribes of child cus- powers might be effective outside of Indian tody jurisdiction arising in cases outside of country, definitely but others are not. Su- country.53 preme that, Court case law is clear for exam- (3) Therefore tribes Alaska ple, regulate the conduct of jurisdiction in arising cases outside tribal members through toward each other the criminal beyond law does not extend support As for the conclusion reached country.57 Equally clear is syllogism independent as but adjudicate law power case that the related rationale the also relies on child beyond cases does not extend following syllogism: second Indian (1) Through the Tribe List Act and Tribal Further, premise the second of the second Act, Congress Justice has ratified the Secre- syllogism wrong in asserting is that sover- tary recognition of the Interior’s of Alaska eignty “virtually would meaningless” be un- sovereigns, sovereigns, tribes as they as less tribes which occupy do not Indian coun- authority have inherent to establish their try powers have all the inherent of self- government own including forms of government. country important Indian is an justice systems.54 factor, limiting but tribes without it still have (2) occupy Unless tribes that do not power Indian the inherent to determine their own country have powers self-gover- “inherent organization of forms membership.58 of nance,” including adjudicate Further, powers tribes have such as are dele- custody disputes, child sovereignty gated their by Congress. powers them Tribal un- “virtually meaningless.”55 would be der the Indian Child Welfare Act are an important example delegated powers of (3) Congress As did not intend tribal sov- justice involve systems. the need to use tribal ereignty virtually meaningless, to be it must powers may delegated Other fu- empowered have occupy tribes that do ture, judgment Congress. needed country Indian powers exercise inherent country Tribes outside are also self-governance, including custody juris- child eligible special programs and services diction, country.56 outside of Indian provided govern- to Indians the federal syllogisms These particular are flawed. In ment, many of which involve tribal adminis- premise syllogism first of the first Also, grants. tration of federal such tribes wrong ignores principle because it the basic sovereign immunity. have Thus tribal sover- for the allocation of state and tribal func- eignty occupy for tribes that do not country tions. Outside of Indian state laws country meaningless. is not apply to Congress explicitly Indians unless provides Thus, Finally, otherwise. outside of Indian syllo- the conclusion of the second country premise gism should not be that tribal must have wanted tribes sovereignty applies Congress provides unless occupy country that do not to exercise otherwise, but sovereignty applies powers that state self-government all the of inherent Congress provides unless otherwise. demonstrably outside of Indian Op. 52. Organized Village at 751-752. Egan, 57. See Kake v. U.S. 7 L.Ed.2d 573 Id. at 753-754. See, Martinez, e.g., Santa Clara Pueblo v. (1978); Id. at Act, see also the Tribal Justice 25 U.S.C. 3601(4) (1994), which states "Indian Id. at 753-754. possess authority tribes the inherent to establish government, including their own form of Id. justice systems." at 753-754. contrary’ press law to the overrides Congress’s to treat all federal

wrong, for intent was going beyond limit- equally, general and Indian is a rule that ‘Indians tribes authority generally all tribes.59 ing factor on have been boundaries reservation nondiscriminatory outside of Alaska also lost Some tribes law held country, occupy, their Indian like most of applicable all citizens of the otherwise ”61 yet Northway, only scattered State.’ allotments-— authority by the is limited allocative their Jones,62 Tribe v. Apache In Mescalero is one ex- The tribe in DeCoteau principle. clear that this is a Supreme Court made it ample. of American Indi- firmly principle established century: to the 19th an law that dates back Principle Allocative State and V. The Tribal Power [Tjribal activities conducted outside present different reservation consider Funda- Principle Allocative Is a A. The ations. “State over Indians is Component Indi- mental American yet more over activities ... not extensive an Law any Organized Village reservation.” complexities Despite the of the numerous [60, 75, Egan], Kake [v. addressing the ex- Supreme Court decisions (1962)]. 562, 7 Absent ex L.Ed.2d 573 power respect to the tent of tribal with contrary, the press federal law to Indians states, explicitly or most of these cases either beyond going boundaries have reservation (1) whether implicitly address two issues: generally been to non-discrim held litigants activity the rise giving the inatory applicable state law otherwise country, dispute are based in Indian See, e.g., Puyall all citizens the State. (2) is an which there act of whether Game, Department 391 up Tribe v. U.S. supports particular exercise of expressly 392, 1725, 689] 398 20 L.Ed.2d [88 S.Ct. power. state or Kake, (1968); Organized Village supra, because, important These two issues are 562]; v. [82 369 U.S. at 75-76 S.Ct. Tulee Bryan Supreme Court stated in v. Itasca 681, Washington, [62 683 315 U.S. S.Ct. general County, the rule is that “State laws (1942); 862, L.Ed. Shaw v. 1115] 86 Gib generally applicable are not to tribal Indians Corp., 276 U.S. 575 [48 son-Zahniser Oil except on an Indian reservation where Con- 333, (1928); 72 Ward v. 709] S.Ct. L.Ed. gress expressly provided has that state laws Horse, 1076,41 [16 Race 163 504 S.Ct. U.S. By contrast, apply.”60 of Indi- shall outside (1896).[63] L.Ed. 244] “general rule” is that tribal Apache Tribe also leaves little Mescalero authority apply, unless there is does “principle” it is a it doubt describes congressional expression clear should. principle one: “That is as relevant to a Supreme Court broad As the stated Oklahoma “ Nation, laws, ‘ex- laws state criminal Tax v. Chickasaw State’s tax as it is to Commission Inc., 751, Techs., 523 118 S.Ct. 59. See Dissent Part VI. U.S. infra (1998) (“We recognized 140 L.Ed.2d 981 have 373, 2102, 2, 376 S.Ct. 60. 426 U.S. n. 48 may regulate that a State to tax or have (1976) (quoting v. L.Ed.2d 710 McClanahan State occurring tribal activities within the State but Comm'n, 164, 170-71, 411 U.S. 93 S.Ct. Tax say country.... To substantive outside 1257, (1973)). L.Ed.2d 129 conduct, apply laws how state to off-reservation ever, say longer enjoys is not to that a tribe no 450, 2214, 465, S.Ct. suit.”); immunity Apache from White Mountain (1995) Apache (quoting L.Ed.2d 400 Mescalero Bracker, 136, 144 n. Tribe v. 448 U.S. Jones, 145, 148-49, 411 U.S. 93 S.Ct. Tribe (1980) (quoting 65 L.Ed.2d 665 Mes (1973)) added). S.Ct. (emphasis 36 L.Ed.2d calero, 148-49, 1267); 93 S.Ct. at 62. 411 U.S. ("Of Bryan, 426 U.S. n. 96 S.Ct. 2102 at 376 course, [favoring pre-emption this model usually authority] yields conclusions as different 63. Id. at Numerous oth- application of state laws to Indians Supreme er Court decisions after Mescalero have federally have left or inhabited estab who never See, recognize e.g., principle. continued to this added). reservations.”) (emphasis lished Manufacturing Kiowa Oklahoma v. Tribe of Horse, supra, see Ward v. Race applies state law to off-reservation Indian applies as much to tribal ski activities “express unless there is federal fishing enterprises. resorts as it does to contrary.” See law to the Examples of such Kake, Organized Village supra.”64 express reselling laws are treaties off- fishing rights.[67] reservation Secondary recognized sources have also importance the existence and of the allocative Thus, Supreme Court and Indian law principle. example, For the American Indi- practitioners scholars and consistently Deskbook, an Law which is a treatise com- recognized the principle allocative and its piled by the Conference of Western Attor- centrality in federal jurispru- law General, neys states: dence. Determining presence of Indian coun- decision, In its recent Venetie II the Unit- try is the benchmark approaching Supreme ed States again empha- Court once federal, tribal, allocation of au- principle, sized the allocative time thority respect to Indians and Indian context Despite of Alaska Natives. the fact lands- [T]he Court em- power to tax is one of a tribe’s ployed [the definition] to powers inherent self-government,68 the Su- geographical determine the reach of the preme applied principle allocative special governing Indian law preemp- rules and held that the Venetie tribe did not have tion of state law in civil contexts. Thus levy question the tax in because country” the “Indian definition is relevant being it was imposed activity on an on tribal virtually every aspect of Indian law lands country.69 outside of Indian The Court displaced by statutory unless another for- expressed principle by the allocative first mulation geographical coverage.65 citing Footnote of DeCoteau.70 The Court “Preemption discussion of in Indian “Generally then speaking, primary stated: Law,66 Law” in Federal Indian is an also over land that is Indian analysis principle. of the allocative Most of rests with the Federal Government and the the discussion concerns the “within Indian inhabiting it, Indian tribe not and with the country” aspect principle, of the because this See, e.g., States. South Dakota v. Yankton aspect has received more recently. attention Tribe, Sioux 522 U.S. 118 S.Ct. 139 As to the country” aspect “outside of Indian (1998).”71 part L.Ed.2d 773 The principle, of the allocative this text states: opinion by Yankton Sioux cited the Venetie

Preemption can occur in off-reservation II Court states: '“If the divestiture of Indian also, approach contexts but the property is different: ... a effected diminishment of Indi- Tribe, See, Apache 64. Tribe, Mescalero e.g., 411 U.S. at Apache 68. Merrion v. Jicarilla 130, 137, S.Ct. 1267. 71 L.Ed.2d (1982) ("The power to tax is an essential attrib- Deskbook, (Jo- 65. American Indian Law 36-37 sovereignty ute of Indian because it is a neces- eds., ed., seph 1998) (inter- P. Mazurek et al. 2d. sary self-government.”). instrument of omitted) quotations nal citations (emphasis and added); see Housing also Ahboah v. Auth. of 948, 954-56, 69. 522 U.S. Tribe, (Okla.1983), Kiowa 660 P.2d (1998). L.Ed.2d 30 by which is cited the Deskbook in the above following discussion for the statement: "the importance Id. at 952. Because of its to this allocating authority touchstone among the for quote again. discussion I this footnote once governments various concept has been the " question continuing If the lands in are Country.' within a (empha- ‘Indian Deskbookat 36 n.46 "reservation,” added); jurisdiction is in the sis and tribe and see the State of Alaska’s Brief in II, the (citations Federal Government.... Venetie On the other 1997 WL 523883 at *18 hand, omitted) (“Indian continuing if the lands are not within a jurisdictional is the reservation, State, federal, state, except the delineating is in touchstone for and trib- lands.”). parcels for those authority land which are "Indian Indian-occupied al over allot- ments, the Indian titles to which have not been Wilkinson, extinguished....” David H. & Getches Charles F. DeCoteau, (2d ed.1986). Federal Indian Law 331-36 420 U.S. at 427 n. 95 S.Ct. 1082. Id., II, note at 333. 71. Venetie 118 S.Ct. at 952 n. 1. by Congress.75 longer specifically divested” territory, no unless then the ceded lands the Montana Court country’ implication defined ‘Indian as is constitute 1151(a) pri- has and the now meaning scope State changed U.S.C. the somehow mary jurisdiction them.”72 principle, allocative and because of this the majority claims that “the “reconciliation” the rule, general presumption with its This [Supreme] has not focused on tribal Court of Indian outside favor state authority.”76 of tribal land as determinative country, clearly applies present case. the II here, simply wrong. recently as in Venetie reasoning As and This The critical issue DeCoteau, can whether tribe exercise referred to the as the powers of Indian its outside one of inherent principle “general rule” of allocative as Nevertheless, majority ignores country. the jurisprudence.77 Indian law jurispru- principle of Indian law this bedrock Moreover, contrary majority’s asser- deciding the issue. dence tions, Montana did not down water what premise with beginning Instead n prin- Mescalero expression of the allocative asking, the allocative applies state law Rather, cited Mes- Montana ciple meant.78 arising outside principle requires cases calero proposition that “even on res- act of country, whether there is an ervations, may applied state laws unless the asser- Congress which is in conflict with application would interfere reser- such authority, state reverses tion of self-government.”79 This statement vation begins premise principle with the meaning in favor of adds authority applies that tribal and asks wheth- country” aspect “within Indian alloca- expressly divested tribe er principle, nothing change tive but it does majori- jurisdiction in this situation.73 principle ap- meaning of the allocative Montana claiming ty does this country. plied This is clear outside of United States74 “reconciled” allocative Mescalero, Mescalero, from the text of because principle, with “the almost as stated after Mescalero makes immediately general sovereignty rule that exists Tribe, 329,-, powers arising 72. Yankton extend to child cases Sioux L.Ed.2d in Indian premise majority’s See the first first Op. at syllogism supra IV Part of this dissent majority opinion at Nation, v. Tax Comm’n Chickasaw Oklahoma 2214, 450, 465, 115 S.Ct. 132 515 U.S. L.Ed.2d 1245, 74. 450 U.S. L.Ed.2d 493 (1995) Mescalero, (quoting U.S. at 400 49, 148— 1267). rule, Op. respect general at With to this Op. See at 752. offer, repetitively, following the I I fear observa- recognition by In tions: view of the Secre- Mescalero, tary Deer status U.S. at 93 S.Ct. 1267. of the tribal of Alaska’s Native doubt, villages, supra accompanying analyzing is no see text note There when both Mescale- Montana, quote sovereignty the their not in ro and that the from Montana existence of is issue. They sovereign majority page opinion powers recog- at of its have the same as uses above-quoted language nized other In references in Mescale tribes in states. cases where Montana, villages village occupy Compare at tribal or Indian ro. members ("[The] country categories power or other exercise of tribal be trust S.Ct. —allotments property powers yond necessary protect what to tribal tribes have same as is self- —Alaska Likewise, government relations tribes in P.L. 280 to the or to control internal is other states. dependent villages village or inconsistent with the status of the extent tribal members do tribes, express occupy country, survive without Indian Alaska tribes have so cannot congressional delegation. Apache sovereign power which the same as tribes have Mescalero Jones, country little or no Indian in other states. Tribe 411 U.S. Mescalero, 114.”) sovereignty neither case the existence of tribal 36 L.Ed.2d (“The question, upshot in as 93 S.Ct. 1267 has been the but in Alaska in the other states powers repeated that, absence of this to the are constrained statements Court effect reservations, may country. question even Indian Thus the in this case on state laws be Northway application Village applied not whether Tribe exists as a unless such would interfere sovereign sovereign, self-government....”). whether its with reservation but inherent quoted Montana, upon in statement the Court which the outcome of the case turns. goes state the coun- example, on to “outside Indian For in McClanahan the Court stat- try” portion principle: the allocative “But helpful of. may begin ed: “It to be our discus- activities conducted reser- outside the applicable sion of the law complex to this present vation different considerations.... area with a brief statement of what this case express contrary, Absent federal law to the dealing does not involve. We are not here beyond going Indians reservation boundaries with have Indians who left or never inhabited generally been held to non- reservations set aside for their exclusive discriminatory applicable state law otherwise use....”82 Thus, to all con- citizens State.”80 Also, Kake, Organized Village in a case Montana, assertions, trary majority’s Alaskans, involving Native issue the power a case about nonmembers first Court addressed was the status of the land reservation, on a change does not the alloca- upon dispute which the arose: “The situation principle’s presumption tive in favor of state here that of differs from Metlakatlans authority outside country. of Indian Angoon that neither Kake nor pro- has been noted, majority’s apply As failure vided with a reservation.”83 Because the principle the allocative leads the tribe country, did not reside This, proceed wrong premise. from the “statutory authority there existed no under turn, leads the erroneous in this decision Secretary which might of the Interior Despite years Supreme case. over 100 permit operate contrary traps [Kake] fish precedent reflecting Court the allocative law,” to state the Court held that Alaska’s principle, majority goes so far as to state fishing applied to the laws tribe.84 [a] that “whether tribe is in Indian located country” “key is not a inquiry” in delin- cases first, only, Likewise in Venetie II the extent eating jurisdictional pow- of tribal question Supreme which the Court addressed er.81 Such statement of numerous view was whether the tribal lands on which Supreme' contrary Court decisions to the place activity taxed took were within Indian eye controlling prece- turns a on legal blind country.85 the answer Since was “no” dent. tribe’s inherent to tax could not exercised.86 Supreme

B. The Court Has Traditional- ly Viewed Whether or aNot Case Similarly, in DeCoteau the Court Country Arose Thresh- as a court affirmed state over Indian old Issue custody proceeding because, children in a held, the court the case arose land that no Contrary claim, majority’s to the the Su- longer was Indian was preme Jurisdiction has not viewed whether exclusive.87 In Indian not a case arose as an the state jurisdiction, important inquiry delineating in would cases have no outside Indian jurisdiction, traditionally country jurisdic- Court has treat- the tribe would have no inquiry an Supreme ed such as introductory the threshold issue tion.88 The Court’s Mescalero, 148-49, Kake, 62, Organized Village 80. 411 U.S. at S.Ct. 1267 83. 82 369 U.S. at (citations omitted). S.Ct. 562. Op. 81. at 756. 84. Id. McClanahan, 167,

82. 411 U.S. at 93 S.Ct. 1257 85. at See 118 S.Ct added) (citations omitted); (emphasis see also Nation, Oklahoma Tax Comm'n v. Sac and Fox Id. at 955-56. 1985, 508 U.S. 124 L.Ed.2d (1993) (noting began we "[i]t that is true that 2, at 427 See 420 U.S. n. 95 S.Ct. 1082. by emphasizing our discussion in McClanahan ‘dealing were that we not with who Indians have Id.; (Doug- left or never inhabited aside reservations set for see id. at also ’ ”). las, J., dissenting). their exclusive use.... conclusion has no

language makes that whether or not tribal members.92 This it clear jurisprudence. law country was basis in Indian the land was Indian the thresh- upon of the case old issue which outcome II Supreme “[said] Court in Venetie The follow, hold, “We for the reasons that rested: jurisdiction nothing about over members”93 [Congress] the Lake Tra- that terminated “jurisdiction simple for reason that over Reservation, consequently verse in II. was an issue Venetie members” jurisdiction.”89 state courts ANCSA-granted lands Whether Yenetie’s country

were Indian and whether Venetie to tax power its inherent non- could exercise a Country Indian as Jurisdictional C. lands outside of Indi- members on its located Concept Encompasses Tribal Power country were that case. the issues Lands and Members over Both Tribal Nevertheless, majority’s log- according to the ic, decision, specific Supreme if a Court As the above discussion allocative example, said that all federal courts must clear, country principle makes Indian obey Supreme precedent, majority Court jurisdictional concept encompasses ignore courts could would reason power over both tribal lands and tribal mem- precedent Supreme because Court majority Remarkably, the takes issue bers. did not mention state courts. Court’s decision principle of with this fundamental and settled Supreme on a silence Court’s majority Indian law. The states that just at issue in is not a case that— II Supreme Court in Venetie “makes clear legal implied pro- silence —not some kind of any significance allocative that exists Supreme Court itself has nouncement. country pertains concept of Indian faulty recently type criticized reason- land, power territorial over its not its tribe’s ing majority engages.94 which members.”90 The comes to this conclusion, which with is at odds over 100 Moreover, Supreme numerous Court cases years Supreme precedent,91 by Court rea- majority’s just how reveal mistaken con- soning that because the that Indian is not clusion is relevant ‘primary II jurisdic- Venetie that tribes have “not[ed] the issue of whether a tribe country’ over that is Indian land over tional its own members.95 cases, nothing but about over [said] each of these the existence Indian significance there determining members” is no “allocative was central factor concept country” jurisdictional authority ... Indian whether the tribe had regard questions over of tribal its members. 427-28, 95.See, Utah, (emphasis e.g., Hagen v. 89. Id. at S.Ct. 1082 add- 510 U.S. ed). (1994) (Utah S.Ct. 127 L.Ed.2d 252 courts properly exercised criminal over an Op. who crime—the at 757. committed a diminish ment the Uintah Reservation meant that the location where the crime was committed supra 91. See V.A& V.B. Dissent Parts Bartlett, longer country); Solem v. was no Op. at 782 & n. 121. defendant, (1984) (holding that because the who Cheyenne was an enrolled member of the River

93. Id. at n. 121. Tribe, Sioux committed a crime on reservation grounds, jurisdic did criminal the state not have Neztsosie, 94. See El Paso Natural Gas Co. DeCoteau, him); tion over -, U.S. 143 (holding "[Congress] S.Ct. 1082 that because ter (1999) (noting "[n]ow L.Ed.2d 635 and then Reservation,” Lake minated the Traverse pregnant” silence not in a case the in which giving because the events rise to the child custo reasoning Court reversed the Ninth Circuit for lands, dy dispute arose on "the state these courts that tribal court determine it could whether had custody [over Indian child have putative over actions Price-Anderson Kake, Organized Village dispute].”); 369 U.S. although congressionally because the mandated of ("It at S.Ct. 562 never been jurisdictional has doubted scheme of the Price-Anderson Act may punish by clearly right that States crimes committed intended of federal removal as to Indians, Indians, courts, was even outside of In courts from state the Act silent about reservation courts). country.”). tribal dian D. Majority’s Internally dependent Decision Is diction is not on the territorial law, Regard concept to the

Inconsistent Im- mandated federal In- portance country, Basis dependent Territorial dian it is but some for Tribal Court Jurisdiction form of territorial nexus. shows, As the above discussion there is majority explain does not how lower authority substantial Court estab- jurisdic- its apply personal courts should new lishing principle impor- the allocative and the concept. jurisdic- personal tion The idea of country delineating tance of Indian state tion relates to a contacts with a defendant’s jurisdictional authority. and tribal Because Indians, involving forum state.99 In cases undercuts the basis for the analog the forum the state is Indian coun- decision, majority’s majority spends the try. Today, the invents a new ana- arguing much effort that Indian log purposes personal to the for juris- not relevant or needed for court tribal village: in Alaska —the tribal diction over members.96 A requirement that a possess tribal court Ironically, majority, the at the end of its personal jurisdiction litigants appear- over opinion, impliedly acknowledges the need for ing before it ensures that the tribal court geographical juris- territorial basis will upon adjudicate not be called the present diction cases like the one. In its disputes parents who children live comity, majority discussion of states that villages far from their tribal and have little recognize state courts not should court villages.100 no contact with those judgments personal if the tribal court lacked jurisdiction.97 personal jurisdiction But is an These assurances that courts will “tribal inherently territory-based concept, adjudicate involving upon not be called disputes” geographical contact with a forum villages state —a those who far live from tribal are entity.98 Thus, majority opinion says illusory, party custody for if a files a suit proper juris- non-Native, exercise court against party, of tribal another Native or See, ("the e.g., Op. reasonably fo- not forum are such that he could antici- cused on land as determinative of tribal pate being haled into court in the state. forum (tribes authority”); Op. power at 754 "derive the Rudzewicz, Burger King Corp. See v. 471 U.S. adjudicate ... internal domestic matters from S.Ct. [105 528] 85 L.Ed.2d sovereignty independent a source of of the land ("the they Op. occupy”); at 755 law case does activity The unilateral of those who claim fairly support the view that the existence of relationship some with a nonresident defen- prerequisite anis absolute to the satisfy requirement dant cannot of contact sovereign Op. power”); existence of at 756 with the Slate.... [I]t forum is essential ("[t]he key inquiry ... is not whether tribe is each case that there be some act which the ("tribal country”); Op. located in Indian at 756 purposefully defendant [him]self avails country] status itself [without includes the privilege conducting within the activities adjudicate internal child dis- forum State.... putes”). Turner, (Alaska Puhlman v. P.2d 1994). A must have Id. at nonresident defendant warning may foreseeably fair that his activities State, example, Dep't For Parker v. Reve- him to in Alaska. nue, CSED, (Alaska 1998) P.2d 587-88 If the activities in the forum defendant's omitted, (citations part), explained: we systematic,’’.the state are "continuous and fo- personal jurisdiction For the exercise over may "general jurisdiction” rum assert constitutional, a nonresident defendant to be defendant, cause of action need not must have defendant sufficient "minimum arise out of the contacts with the forum state. contacts” with the forum state so that main- However, the cause of arises out where action taining a suit the forum state "does not state, of the forum the court contacts with play offend ‘traditional notions of fair and sub- may "specific jurisdiction,” even where ” justice.’ stantial International Shoe Co. v. defendant has one contact with Washington, S.Ct. [66 forum state. (1945) (quoting Meyer, 90 L.Ed. 95] 457, Milliken [61 85 L.Ed. 278] supra See note 98. (1940)). permissible is Jurisdiction over nonresi- Op. dent defendant where his contacts with the at 763. authority.102 adjudicatory for tribal respond no matter basis must

that defendant lives, acknowledges absence majority a default The the he or risk or she where today, it but what does supporting The defendant case judgment in tribal court. law legal precedent that the that dearth of might to raise the defense claims be able not have personal but from the fact “courts tribal court lacked results personal apart ideas of land- uncertainty meaning of occasion to tease the had the village membership sover- sovereignty context of tribal in the based strategy eignty.” that a whose risks courts makes many may unacceptably high for liti- be reading Supreme is an This erroneous gants.101 “teasing jurisprudence, for Indian law Court anyone’s how con- guess It is the untested concepts exactly what the apart” these personal jurisdiction premised on cept of it that state has done when has held Court play in our state villages will out tribal governs than law tribal mem rather tribal it reveal the foundation courts. But does country. Indian The cases bers outside of majority’s upon the decision rests. which illustrate following cited the subsections country as Rejecting for Indian the the need They fundamental this. also illustrate a jurisdiction, for tribal the territorial basis law, by as the principle of Indian articulated majority another terri- in the end substitutes Attorneys General: Conference of Western through person- the concept doctrine torial sovereign powers extend tribe’s inherent “[A] jurisdiction. path, is a one not al This new territory, [therefore] to tribal taken Indian law. federal criminal claims civil and depen on fee will be member actions lands Country Prerequisite Is a VI. for upon of those lands.” This dent the status Adjudica- the Exercise Tribal Court the principle is to the central resolution tory Authority case, majority. ignored by the present but is Supreme A. The Has Never Held the Powers B. At Two Inherent Least a Tribe’s Inherent Powers Can Recognized v. Wheel- in United States Exercising Be Basis Tribal the Beyond er Not Extend Do Adjudicatory Authority In- Outside of Country Country dian held that an United States v. Wheeler105 The United States Court has self-govern- held, majority today, “right of internal never does Indian tribe’s itself, right laws sovereignty, prescribe ment in and of includes tribe’s inherent applicable to enforce country, to tribe members and independent of Indian can be the Also, concept of tribal inherent of convenience to Natives in cases discuss the benefit sovereignty, disputes majority page do so in the villages, but context remote noted See, e.g., illusory. United may prove that arise in Indian opinion, its be No 760 of Wheeler, U.S. self-executing, just States decree of court will a tribal be States, (1978); L.Ed.2d 303 Montana v. United enforceable as no decree from another state is 67 L.Ed.2d Alaska an order from an Alaskan court. without Thus, (1981). majority attempts to answer Any party decides not to follow a tribal who question power of whether extends will, therefore, opportu- always decree country by beyond relying on cases that nity comity state court raise issues in a before involve the exercise of tribal country. in Indian Thus, be after the tribal decree can enforced. country is But the absence of Indian court, party in a if a the issues are tried distinguishes present fact that critical voluntarily comply the tribal court does decree, majority. upon by from relied case those proceeding there must another of the tribal state court in which fairness Op. at 754. proceeding court can be tried. This potential time-consuming expen- to be more merely proceeding Deskbook, in state court to sive than supra note 104. American Indian Law begin added). with. (emphasis at 55 upon important It the cases 55 L.Ed.2d to note that all ruling support which relies to its are

781 by country. example, criminal This an For in Organized those laws sanctions.”106 Vil- Kake,111 “power part [a punish lage tribal offenders Supreme the Court observed: sovereignty.”107 retained Other authority tribe’s] own yet “State over Indians is more sovereign powers of retained Indian tribes any extensive over ... not activities on res- power regulate include “to domestic rela- the It ervation. has never been doubted that among tions tribe members.”108 may punish States crimes committed Indi- ans, Indians, even reservation In- outside heavily majority on The relies Wheeler country.”112 dian This conclusion is not sur- holding Northway has that the tribal court prising. majority Even likely jurisdiction However, most present in the case.109 itself, granting not Wheeler, would endorse the notion of question does not answer the authority criminally posed by present pun- Alaska tribes the case because events members; giving yet, logical ish place rise the crime in took that is the Wheeler solely today’s of Indian within confines coun- extension decision. try.110 Despite its extensive reliance Bartlett,113 In Supreme Solem v. Court Wheeler, acknowledges never jurisdiction made clear that the state’s important this difference between Wheeler acting Indians outside was Thus, present and the case. Wheeler’s corpus exclusive. Solem involved habeas teachings powers pro- inherent tribal about petition Chey- of an enrolled member of the guidance present

vide limited in the case. question enne River Sioux Tribe.114 The was from Wheeler describes how and where such whether state had over a powers inherent are But it derived. does member who had committed a crime.115 powers indicate such whether extend outside Court, Supreme as it numerous of Indian central issue here. —the cases,116 other this examin- resolved issue ing giving whether the actions rise 1. A Tribe’s Inherent Power to Criminal- dispute country. occurred in Indian ly Its Sanction Members Does Not regarded Court did so it because actions Country Extend Outside country by outside of Indian tribal members majority’s order reasoning to be under the exclusive correct, result to be there should be authori- explained state. The concept ty indicating powers that the inherent tribal broadly: described Wheeler extend outside of Indi- matter, authority. But As a doctrinal there no such States contrary, To opened there is over unallotted lands if definitive opposite applicable for the surplus conclusion: a tribe’s land Act freed that punish thereby inherent land of its members reservation status and beyond does not extend the confines of Indi- diminished the reservation boundaries. 322, 106. Id. at 98 S.Ct. 1079. that the location where crime was committed longer country). was no 328, 107. Id. at 98 S.Ct. 1079. Supreme A case to which the Court referred Kake, 75, Organized Village 369 U.S. at 82 18, (citing 108. Id. at n. 98 S.Ct. 1079 Fisher 562, 134,] People S.Ct. was [23 Pablo v. Colo. Court, v. District U.S. (Colo. 1896). P.2d There a [P.] member (1976)). L.Ed.2d 106 the Southern Ute Tribe killed another member of the tribe. Both Indians resided on the reserva Op. 109. See at tion, place but the crime off the took reservation. The Colorado Court held that Colorado courts, court, at jurisdiction. 435 U.S. 315 n. 98 S.Ct. 1079. not the tribal had U.S. 79 L.Ed.2d (1962) 111. 369 S.Ct. 562 added); (emphasis Id. at S.Ct. 562 see 114. Id. 104 S.Ct. 1161. Utah, Hagen also 958, (Utah (1994) prop- courts 115. Id. erly exercised criminal over an Indi- crime, an who committed a since the diminish- supra ment of the Uintah Indian Reservation meant See note 95. 782 state, membership The hand, federal, and land.”122 Su- [tribal] and trib

theOn other just jurisdiction that in Solem when it preme over these Court did al authorities share Acts, surplus surplus Act which analyzed if land did land like lands the relevant existing ANCSA, reserva “uncouple[d] Indian [of not diminish reservation status tion because dian country. . . . the entire ^[117] opened area is In land] from Indian ownership.”123 important case because it is an Solem Regulate A Inherent Power 2. Tribe’s upon the premises that several shows Among Relations Members Domestic majority’s decision is based are which Arising Does Not Extend to Cases First, inherent wrong. it demonstrates that Country Indian Outside of in powers recognized those Wheel- like country. noting beyond majority not extend Indian The is correct that er do Second, jurisdiction regulate it that state over power shows inherent tribes have the is outside Indian among tribal members domestic tribal members.124 relations concludes, exclusive, not, con- majority as the v. Wheeler125 Mon- Both United States authority.118 This is clear current recognized pow- this tana v. United States126 held that “the States have Court because However, as the discussion above er.127 committing crimes jurisdiction” Indians over shows, specific power inherent which was n focus—the “of its sta- land is freed reservation ability of tribes Wheeler federal, tus”, but, hand, state, the other “[o]n criminally their members —does not punish jurisdiction” if tribal authorities share Therefore, beyond country. it extend Third, country.119 it is dis- the land logical neither do the is to conclude that majority’s unsupported assertion poses of powers recognized Wheel- other inherent nothing “land” over out, Supreme case law bears er. Court jurisdictional authority a over do with tribe’s power decide at least terms of child discussion Solem members.120 The entire custody cases. expressed in terms over precedent holds that “lands” order to determine child cases fourth, inherent over does And Solem over members.121 arising in to cases not not extend away majority’s claim that does with the country. holding case so is DeCoteau v. not occasion to One federal courts have had the County District Court.128 The other Fish question or of what consider “answer separates happens law like er v. District Court.129 when a ANCSA 467, type pre-ANCSA U.S. S.Ct. other of Indian A de- 117. 465 at 104 1161. scription of reserves reservations Alaska Op. 118. at 761. reserves or reservations at does mention Northway Mentasta. Federal Field Commit- or 467, Alaska, (emphasis 465 104 Development Planning 119. U.S. at S.Ct. 1161 tee for Alaska added). (1968). & 444-45 Natives the Land Op. 120. at 757. Op. 124. at 755-756. 8, 465 467 & n. S.Ct. 1161:-see

121. U.S. at 313, 1079, S.Ct. 55 L.Ed.2d 303 125. 435 U.S. supra Dissent V.C. also discussion Part (1978). Op. at 754. 450 (1981). 67 L.Ed.2d U.S. S.Ct. making U.S. at S.Ct. 1161. suggest this observation I do not mean to 1079; 127. 435 at 322 n. 98 S.Ct. U.S. ANCSA’s abolition of reserves and reservations U.S. although clearly Northway, affected it affected a occupy villages number of which did re- other 1082, 43 L.Ed.2d 300 or do not contain serves reservations. briefs (1975). showing Northway occupied ever a reserve a Similarly, the record does not or reservation. parties where resided show that the land was, reservation, ANCSA, reserve, before eepted stipulation by C. DeCoteau parties that the jurisdiction if state had the reservation had in one of The issue the two consolidated by Congress.”133 been terminated cases in was whether the tribal or DeCoteau The Court state court had note 2: ceedings involving Indian children.130 The jurisdiction, Act. The those land it generally applies as well to civil ments, ment. been courts asserted and settled courts did not have lands In each are concerned, continuing 18 U.S.C. 1151.... done on of the 1867 reservation If the tribe jurisdiction.” not unthin the lands extinguished.... are ... Sisseton-Wahpeton of the followed § lands On the other “Indian parcels parties agree by the Court has “reservation,” is in the framed two its non-Indians since the 1891 in question jurisdiction which, though a continuing borders, ^[132] face, only which are “Indian allot- by titles to which have not cases, country,” the Federal Govern- ^[131] statement with Foot- the issue hand, State, except the South Dakota While have been owned recognized jurisdiction is that Tribe for acts over members with criminal are within a as defined in custody pro- questions reservation, if within the state the lands if these follows: the of one that in Footnote to the case tirely lation.” that Court assumed without claims, the Court’s not scribe the part of [the] agreement dramatic contained in Footnote er the case. fuses the §§ The The than the 1151(a) contested “state courts ,[134] lands are ‘Indian the different language parties. fallacy the follows that mischaracterization of the stipulation content Footnote which stipulation between the It explanation parties did the Court 3 with “[ajfter describing is by (c) legal concept Footnote not misreads DeCoteau. Rather, of Footnote 2 not [do] in formulating the of contest the settled issue relied and 2, the any true, not countr/.”136 majority’s described in Footnote 2, parties, noted deciding as to Footnote and the result is a parties, related statements land of describes an en as the on why —one precedes but was not does anwas [Fjootnote their stipu assumption reading stipulation which the the import that was majority contains not parties It con of U.S.C. accurate rath legal law de- of if 2 ways. DeCoteau can be illustrated in two language The of Footnote 2 delineates a First, a close examination of 2 re- Footnote straightforward jurisdictional scheme supported by veals that each assertion is whereby tribal courts have legal authority. citation to illogi- It would be their if members the actions of such presume tocal that the first two sentences of gave dispute members that rise to the took (containing princi- the footnote the allocative place in Indian The dis- ple) description stipulation by are a of a agrees, claiming that [in “the Court DeCo- parties, implications teau] did not but the third an unan- consider the sentence is the reservation’s segue analysis. existence because it ae- nounced legal into Court’s 130. 420 U.S. at 95 S.Ct. 1082. 136. 420 U.S. at At the risk being overly simplistic, this footnote can be 131. Id. at S.Ct. 1082. compared following If the situation: opinion parties agree Court's stated “The that the (emphasis 132. Id. at 427 n. S.Ct. 1082 suppressed defendant’s confession should be if added) (citations omitted). the defendant time was questioning," was followed footnote DeCoteau, Op. (citing at 756-757 420 U.S. at citing explaining Miranda and other cases 1082). 426-28 & n. interrogation, "agree” ramifications of custodial opinion as used in the of the not text could (citing 134. Id. at 756-757 Footnote of DeCo Rather, interpreted stipulation. as a it would ). teau parties’ understanding reflect the settled Id. at state of the law as illustrated the footnote. declaring be- openly the issue was not way majority’s disprove

The second compare treat- reasoning the Court’s therefore not be the Court and would fore with that ment the issue Footnote ex- None this careful disclaimer decided. Footnote in con- in Footnote 3. issue 2 is a in Footnote because Footnote ists agreement be- trast does concern an description of of law rather than a statement litigate an parties not to unsettled tween the a stipulation. stipulated parties The question of law. legal principle Footnote does occurred on fifty percent of the mother’s acts if the jurisdiction would lie where indicate non-Indian, noted: patented land. The Court giving dispute occurred rise to activities parties here have assumed partly partly in Indian outside jurisdiction ... if the had non-Indi- State country. 3 raises that com- Indian Footnote an, patented not “Indian coun- lands were parties plex question, but indicates that the 1151(a). § try” We under 18 U.S.C. fifty by stipulating that note, the issue avoided assumption. made the same We country activity 1151(c) percent would be however, contemplates non-Indian that that country” may jurisdiction.138 enough of be confer tracts “Indian state isolated fashion over a ter- scattered checkerboard squarely of fall present The facts the case jurisdiction. ritory under state otherwise legal in principle announced Foot within the situation, obviously will In a there such 2 the lands are not note of DeCoteau —if legal many practical arise and conflicts “jurisdiction country in Indian is the within jurisdiction with state and federal between why This I believe DeCoteau State.”139 is regard parties having mo- and to conduct today’s of control the resolution case. should territory. bility over the checkerboard DeCoteau, tribes, post-AÑO- in like The tribe How conflicts be resolved is these should SA, occupied us.[137] re previously in Alaska which not before serves, country. Indian Both had lost its explicit the The Court is about content today’s and case involve the same DeCoteau assumption parties specifical- made the — a tribal court main issue—whether or state fifty percent ly, figure be the would jurisdiction Indian child in an jurisdiction give the court sufficient to state Thus, in case should dispute. the result our be patented if the land was found not to jurisdiction be as in lies the same country. The the Indian then raises Court DeCoteau — state, tribal, court. with the not counter-argument position before DeCoteau, jurisdiction 420 is exclusive. See U.S. U.S. at 429 n. 95 S.Ct. 1082. 420 Thus, majority’s the at 427 n. S.Ct. 1082. on and the other cases in foot- reliance Skillen federal have addressed this State and courts for its that Alaska now has note 146 decision variety question ways. a of cites in jurisdiction unconvincing. is Skillen concurrent Skillen, Marriage In re Mont. of partly hybrid, the other all involve a cases (1998), P.2d 1 and a few other decisions country inside/partly set of cir- outside of Indian courts share concurrent hold that tribal state cumstances, decided- but such circumstances are involving issues of domestic relations present present ly case. not the Op. & n. 146. tribal members. at 759-760 say question posed not to that the This is These cases indicate that concurrent 3 and in addressed Skillen will never Footnote possible complex a of is resolution to the issue Venetie II held that the arise in Alaska. conveyed lands dispute which when court has the' corporations by ANCSAwere Native country partly partly arises in Indian outside country. S.Ct. at But not Indian 954-55. country. juris- But a concurrent such is coun- not mean that there no Indian this does appropriate is when the dictional scheme try are Native allotments and in Alaska. There country dispute completely within Indian arises Thus, categories property. trust the other completely In the outside of Indian hybrid partly partly circumstances of in and out case, type former court is 3 of DeCo- raised Footnote Fisher, S.Ct. exclusive. See Alas- in Skillen could arise in teau addressed ("Since adoption proceeding appropri- is the case, a such concurrent tribal and state ka. In ately litigation arising on characterized jurisdiction might appropriate. But court reservation, jurisdiction of the Tribal that is not case here. exclusive.”). 1ype Court case— In the latter today U.S. at 427 n. 95 S.Ct. 1082. which case we court 139. 420 is the decide —state found that him.140 The tribal court later tribal member Ivan to tion, arguing Four mother’s also a tribal issue of adoption Runsabove and appellate court held that court case for certified ern exclusive D. Fisher In Cheyenne Fisher, court.142 Ivan’s days member, which question from request proceeding for Ivan jurisdiction.143 Upon before the member, Ivan’s mother the Tribal lack of awarded court moved to dismiss this state her had mother, because the court had husband initiated temporary custody.141 Josephine the state temporary entry of jurisdiction, the court matter had who granted of the North- court receiving Runsabove, was also custody of possessed court was neglected Montana jurisdic- a tribal order, Ivan’s residence of the the state court would have had because the That dispute diction is to be Indian manent status The Court’s reservation. The Runsaboves do not con- tend otherwise.... partially trict ate to dence of as an appears that [95 adoption proceedings country. County had resided outside of Indian adoption, predicate jurisdiction terminated, litigants situation litigants teaching Court, none litigants, predicated which L.Ed.2d litigants, here do .... cf. is clear: since determines if a acts DeCoteau Dis- ^[147] proceeding occurred on the 300] [ it is [425,] present not reside parties giving on the resi- jurisdiction. (1975) appropri- place 429 n. off rise to to the juris- case, such per- ], it jurisdiction.144 The without Montana Su- Thus, I believe that Fisher an- squarely preme disagreed, holding Court that the presented by present swers the issue the jurisdiction.145 state court had The United majority argues But ease. the Fisher that Supreme Court reversed the States Montana supports Northway holding its that the tribal Court, Supreme noting that this was a case jurisdiction in court has this case. The ma- “arising between Indians out conduct on (1) jority ways: does this two misread- reservation,” an Indian “[n]o and federal Fisher; (2) by ing citing subsequent a statute sanctions this interference with tribal Supreme Court an attempt case in to reinter- self-government” because, among other rea- pret analysis I holding. Fisher’s ad- sons, granted “Montana not been ... dress each these efforts turn. jurisdiction” civil over the reservation under P.L. 280.146The Court it clear made that the Language Support 1. Fisher’s Does Not result would have been different if liti- the Country Jurisdiction Outside Indian gants country: had not resided in Indian majority argues “provides The that Fisher adoption proceeding appro- example recogni- Since Supreme the is an of the Court’s

priately litigation arising sovereignty[.]” characterized as tion of the dual nature of reservation, jurisdiction majority on the acknowledges Indian the the lan- that Fisher, above, guage of the Court Tribal is exclusive. The Run- it clear cited makes sought holding saboves have not to that defend the the Court was that jurisdiction by jurisdiction arguing state court’s that was in the tribal court because any part sup- custody dispute substantial of the conduct the child arose in Indian But, porting adoption petition place country. majority quotes the took off then reservation_Since 'parties following all in the exclu- resid- Fisher manner: “[t]he times, ed on the reservation at all relevant sive Tribal ... [de- Court quasi-sovereign since the reservation has not rives] been from status U.S. at at 943. Id. 141. Id. Id. 96 S.Ct. 943.

142. Id. (emphasis 147. Id. at 389 & n. 96 S.Ct. 943 (footnote included). added) 143. Id. at 96 S.Ct. 943. Op. Id. at S.Ct. 943. at 756. if Cheyenne that the case arose outside Tribe under federal assert both

Northern country, the majority Indian state court would quote, law.”149 From this finds jurisdiction,151 status sovereignty” and also that “tribal for its “dual nature of evidence power adjudicate inter- stating to theory by therefore reflects itself includes “Fisher custody arising outside disputes,”152 nal child recognition both a of territorial bases sov- country. saying is not ereignty understanding tribal Indian Fisher custody adjudicate authority adjudicate power to child includes the status itself arising in Indian custody disputes.”150 The cases limited cases internal child use is limited “itself’ that the and that such is not means word arising country. Yet that can be to eases believes that tribal court or, reading sovereignty, majority’s as what comes down territorial is based on Rather, only be as hold- arising country, a to. Fisher can read cases not in Indian tribe’s adjudi- reading ing sovereignty. is not tribe has inherent Such custody involving cate child case reasonable. quasi-sovereign sta- members because its Cheyenne quasi- The Northern Tribe has tus, limited to and that power derived from sovereign status. The arising country.153 cases adju- this status is what enabled the tribe the child case in Fisher. But dicate Indeed, many consistent with other Su- made clear that this does Court cases,154 ques- preme Fisher treats they not follow tribal members wherever re- dispute or not the arose tion whether Instead, arising side. it confined to cases issue, upon a threshold in Indian Find- which the outcome of the case rests. sovereign- ing country, the majority’s that the case arose in Indian “dual nature of general favoring ty” applied rule reading presumes of Fisher Su- Court internally contrary congres- preme analysis in Fisher is the absence of Court’s Supreme Fisher treated the ex- inconsistent. The Court could not sional intent.155 That access, a such at 756. forum to which non-Indian has Id. disparate justified of the is treatment Indian added). (emphasis 150. Id. it is intended to the class of because benefit by furthering he is a member the con- which Fisher, at 151. See 424 U.S. 389 & n. 96 S.Ct. gressional policy self-government. Morton Mancari, 535, 551-555, v. 41 L.Ed.2d 290 Op. at 756. added). (emphasis at Id. 96 S.Ct. 943 By point opinion, Court had this the the fact, quote 153. In the from Fisher on which the juris- already concluded that the tribal court had sovereign- majority relies for its "dual nature of evident, clearly analysis the in the diction. As is ty” in the context of a conclusion arose discus- paragraph above on a issue— centers different sovereignty did sion which not concern tribal claim. the Runsaboves' racial discrimination Nevertheless, limitations, a its but rather race discrimina- attempts argue majority the that to claim. The Court in Fisher concluded that tion paragraph both the of state addresses issue “jurisdiction Tribal Court is exclusive” jurisdictional authority versus court "[sjince adoption proceeding appropriately is supports the unwarranted conclusion that litigation arising characterized as on the Indian jurisdictional authority inherent based on reservation." 424 U.S. at S.Ct. country. sovereignty can exist outside of Indian resolved, jurisdictional issue the Court With the reasoning by majority is to or This not related remaining points by "[t]he [raised stated that supported by paragraph, the above which focuses may briefly.” Id. Runsaboves] 390, be dealt with jurisdiction but on such not on tribal whether addressed The Court then jurisdiction impermissible amounts racial dis- final issue of case. crimination. argument Finally, reject denying we that to the the Runsaboves access Montana courts supra 154. See Dissent Part V.B. impermissible constitutes racial discrimina- jurisdiction tion. The exclusive the Tribal (emphasis plain- not 155. 424 U.S. at 96 S.Ct. 943 Court does derive race from added) (citations omitted) ("In litigation quasi-sovereign ... aris- but rather status tiff from reservation, ing Cheyenne Tribe under law. out of conduct on an Indian Northern federal Moreover, jurisdictional holding jurisdiction even between if a occa- resolution conflicts depended, sionally denying plaintiff absent results in Indian state and tribal courts country ally jurisdiction of Indian as a threshold issue divested of istence as a matter of of Fisher n light Court, even more clear in law. becomes federal See Fisher v. District citation to and reliance on DeCoteau. (1976).”160 majority The maintains that noted, previously As in DeCoteau the Su Iowa Mutual that holding shows Fisher’s

preme giving found Court the events from powers stemmed the tribe’s sovereign custody dispute rise to the child country.161 and not its connection question place take in Indian did not basis, majority’s interpretation On the Court found the state The of Iowa Mu tual n citation to jurisdiction.156 court had exclusive DeCoteau directly Fisher is at odds n with Fisher, by was twice Fisher.157 v. cited which Strate A-l Contractors.162 is a Strate jurisdiction ... “predicate[s] pro residence” much more recent Court must, DeCoteau, standing like as adjudicatory read nouncement on tribal court au proposition Fisher, thority. simply a re It does not cite quirement does, for tribal court directly Iowa Mutual but explains the Fisher, holding something child cases a tribe where exercises that Iowa Mu sovereign authority its inherent its tual over does do. Strate states: members. To read Indian as some held in Fisher that a tribal merely just optional how or as an alternative court had exclusive over an jurisdiction, does, path as the adoption proceeding when parties all were plainly both Fisher inconsistent and De- members the tribe and resided on its Coteau.158 reservation- The Court observed in may Fisher that state courts not exercise Iowa Mutual’s Citation Fisher Does disputes arising out of Persuasively Reinterpret Not Fisher’s on-reservation conduct —even over mat Meaning involving doing ters non-Indians —if so “infringfe] right would on the of reserva majority attempts reinterpret Fish- tion Indians to their own laws and make teachings relying following er’s on the them.”[163] be ruled statement from Iowa Mutual Insurance Co. v. “If LaPlante:159 state-court opinion, Later in the the Court in Strate interprets over Indians or activities on Indian lands a citation that Montana United sovereignty would interfere with tribal and States made to Fisher.164 The Court self-government, gener- the state courts are analysis Strate described Montana’s in the governing Congress, holding Act of on 'whether point the state can be read as sion that once the infringed right action on the country, of reservation Indi- no reached where there is tribal jurisdiction ans to any require- make their own laws be ruled is freed from territorial them.’”). expand ment and therefore can to wherever trib- al members reside. Fisher and DeCoteau contra- 2, 156. 420 U.S. at 427-28 & n. S.Ct. 95 1082. dict view. this Fisher, 14, 424 157.See U.S. at 389 389 n. 96 9, 971, 159. 480 U.S. 107 S.Ct. DeCoteau, (citing S.Ct. 943 420 U.S. at 428-30 (1987). 3, 1082). and 429 S.Ct. n. 95 15, 971; 158.Fisher, correctly Op. interpreted, Id. at 107 S.Ct. at highlights also majority’s an anomalous outcome of the deci- tribe, Northway sion—Alaska’s which is not Op. at 756-757. country, jurisdiction based in Indian has broader Fisher, Cheyenne than the Northern tribe in 438, 1404, U.S. S.Ct. 117 137 L.Ed.2d whose is limited to the territorial con- Fisher, fines of its reservation. See 424 U.S. at Indeed, Fisher, 96 S.Ct. 943. the essence of (quoting U.S. at S.Ct. 1404 DeCoteau, conjunction read in a that as Fisher, 943) (emphasis at S.Ct. country tribe loses reservation its jurisdictional authority or Indian its added). tribal court is diminished. DeCoteau, See 420 U.S. at 427 n. 95 S.Ct. Montana, today’s opinion 1082. But the result (quoting runs 164. Id. at 117 S.Ct. 1245). principle. majority’s counter to this The deci- 450 U.S. at Concurrent re- Fisher Does Not Concern way: following [Montana “The Court J recog- State Fisher Jurisdiction [in ] to the decision ferred first competence of a nizing the exclusive majority the issue in that main states proceeding all adoption an when court over any Montana had basis Fisher was “whether parties belonged to the Tribe resided the jurisdiction.”168 But to assert concurrent Fisher, 424 at See U.S. on its reservation. appear any- not word does the “concurrent” 943.”165 opinion. in the Fisher where no explanation of Fisher leaves Strafe’s indicating that it envision- Instead of was the Supreme the Court views doubt that scheme, jurisdictional the a ing concurrent country fac- as a critical existence of “appropriate it was to stated Court n analysis. use of word Its the tor Fisher on the residence the predicate “or,” analyzed “and,” time it Fisher each parties “all resided on litigants.” Because the tribe’s con- that the Court viewed shows relevant times” the reservation all determining a nection to Indian jurisdiction.169 This court was without holding that tribal court factor in its Supreme language no hint that the contains jurisdiction over child Fisher had system contemplating was a of shared Court Strate, therefore, dispute. on closes door contrary, phrase jurisdiction. To majority’s interpretation of Fisher “predicate on residence of proposition stand for the would have Fisher squarely litigants” within the theoret- fits adjudicate that tribal courts can child custo- principle— framework of the allocative ical country. dy arising in Indian cases not if within Indian jurisdiction if outside of Indian and state Also, it makes clear to Strate that Iowa Mutual is cited authori- extent juris- scope of tribal

tative statements on reliance on and citations DeCo- Fisher’s does)166 (as it powers dictional Fisher’s focus was also indicate that teau persuasive longer is no law. tribe had determining whether the state or emphasizes point in Strate jurisdiction. Both centered cases exclusive its throughout opinion. the state or the same issue—whether National Farm- [Iowa Both Mutual and court had over an Indian Tribe, ers Cos. v. Crow Union Insurance custody dispute. 2 of child Footnote DeCo- 85 L.Ed.2d explicit statement that the Court teau is (1985)] rule an exhaustion describe jurisdiction in that case viewed initially respond allowing tribal courts Fisher, Nothing in which was exclusive.170 jurisdiction; their nei- D'eCoteau, an invocation of year sig- only one after decided adjudicatory ther establishes tribal-court system of concurrent change nals authority, even over the lawsuits involved jurisdiction. Recognizing our

in those cases. variously precedent interpreted, has been Law E. Other Case we National reiterate that Farmers principle attempt an In an to illustrate the exhaus- Iowa Mutual enunciate courts, country, tribal of Indian requirement.... tion decisions do that outside These jurisdictional apart predicate from expand not or stand Mon- can tana n instruction nothing on more on members and nonmembers “the inherent sover- tribe.”[167] sovereignty powers, eign than the tribe’s inherent powers of an Indian 14, Fisher, added). S.Ct. (emphasis 424 U.S. at 389 n. 96 943. 165. 169. Id. DeCoteau, 2, Op. 166. at See 756. 420 427 95 See U.S. at n. S.Ct. 170. ("jurisdiction is the tribe” if the 1082 in Strate, continuing dispute place 167. at 117 S.Ct. 1404 reserva- 520 U.S. took "within ” hand,” added). "jurisdiction (emphasis "[o]n tion’ and the other are within “if the lands not in State” reservation.”). continuing Op. 168. at 757. majority Supreme delineating in the proper cites two Court tax allocation cases,171 power. and state tribal Tax v. Oklahoma Commission Sac and Fox and Oklahoma Tax Com Nation.172 holdings in Despite the Sac Fox Na- mission v. Chickasaw Nation.173 But Nation, tion and Chickasaw which do not majority rely does not what support today’s decision, majority, actually held in cases. Court these Sac and through pliable phrases the use of like “the Fox Nation held that income tax Oklahoma’s implied”178 “suggest,”179 Court cases apply earning not did members in argues that support these cases its deci- employment come from tribal within Indian majority goes The argue sion.180 so far as to country who resided within Indian “[b]y deliberately also count leaving open the door ry.174 governments also for held that Oklahoma’s to conduct internal self-governance in registration functions the absence of vehicle and excise tax and fees country, Indian Chickasaw Nation and Sac apply living not did tribal members suggest Northway Nation Fox Vil- country.175 Indian Chickasaw Nation held lage hear this custo- [child may tax State Oklahoma dy] dispute^]”181 income Indian members who work country, for tribe but reside suggest The dicta these cases182do country.176 outside of Indian The Court also open question it is an whether a tribe held that Oklahoma could tax motor fuel not sovereignty may exercise inherent tax in- country.177 sold the tribe within Indian employment come earned from tribal in Indi- Thus, these cases illustrate continued country by members who do not reside importance of whether a country. Perhaps suggests case arises this also 145, 1267, Op. at 758. U.S. [93 148-49 S.Ct. (1973); Organized Village 114] L.Ed.2d see also 114, 1985, U.S. 113 S.Ct. 124 L.Ed.2d 562, Egan, Kake v. U.S. S.Ct. [82 (1993). (1962). say 573] 7 L.Ed.2d To substantive conduct, apply state laws to off-reservation 173. 515 U.S. 115 S.Ct. 132 L.Ed.2d however, say longer is not to that a tribe no enjoys immunity suit. [Oklahoma from Tax Band] [Indi- Commission Potawatomi Citizen 123-25, 174. 508 U.S. at 113 S.Ct. 1985. Oklahoma, an Tribe (1991)], example, 175. Id. may we reaffirmed that while Oklahoma tax cigarette sales a Tribe's store to nonmem- 176. 515 U.S. at 115 S.Ct. 2214. bers, enjoys immunily the Tribe from a suit to unpaid collect state taxes. 498 U.S. at 510 177. Id. at 115 S.Ct. 2214. S.Ct. [111 905]. There is a difference between right compliance with demand Op. (using "implied” at 758 the term two laws the means available to enforce them. discussion). times in its 179. Id. at 759. Op. at 758. 180. The does the same Kiowa Tribe Inc., Manufacturing Technologies, Oklahoma v. Sac and Fox Nation statement is as 523 (1998), L.Ed.2d 981 follows: sovereign a case which deals with immu- earning Because all nity, of the tribal members in- jurisdiction. Op. at 758-759. The two may concepts exist, may from the legal obligation come Tribe live within Indian are distinct. A country, but not we need not determine whether the be enforceable. Kiowa Court length right self-governance operate addressed this distinction at some Tribe's to could principle govern reaffirmed the that state laws independently of its territorial to of though conduct outside Indian even pre-empt ability the State’s to tax income enjoys sovereign immunity for tribe conduct out- performed earned from work for the Tribe country: side employee itself when the does reside not country. recognized may We have that a State have 126, authority regulate 508 U.S. 113 S.Ct. 1985. The Chickasaw to tax or tribal activities " occurring quote Notably, within the State but outside Indian Nation is: the Tribe has not Jones, here, country. Apache Appeals, See Mescalero Tribe v. asserted or the Court of before to Advocacy A. as the Extent powers are Executive there other possibility

the that Not Jurisdiction Is Tribal Court ex- sovereignty which from inherent derived Special Entitled to beyond the of Indian coun- tend boundaries Deference try.183 of Fisher and But we know because majority that “since this court states by power decide child tribal the to status DeCoteau to determinations defers we Congress, Branch or among powers. the Executive custody is not such cases that, accept even similarly their conclusion Thus, regard jurisdiction to hear to ANCSA, recognized federally Alaska after arising of Indian child cases outside Northway Village like retain Native tribes already country, Fisher and DeCoteau adjudicate disputes sovereignty domestic to majority is still shut the door the maintains itWhile is true that between members.”186 “open.” give to the determi- we conclusive deference nations on all matters of federal Statutory Authority VII. Executive law, Congress that Alaska has not concluded by Majority Relied on the authority adjudicate cus- tribes have to child tody arising of Indian cases outside demonstrates, discussion above sub- As the recognition by the is It also true tribal law Su- case from United States stantial given is Department of the Interior conclu- princi- preme the allocative Court establishes non-justiciable political aas sive deference country, principle ple. of Indian this Outside question,187presumably Depart- because “express law provides that federal to absent delegated authority by ment been Con- has contrary,” “beyond reservation bound- But it gress make such a determination. generally held “have been sub- aries” Indians give not follow that we similar defer- does ject nondiscriminatory state law otherwise questions on ence to executive branch applicable to all of the state.”184 citizens authority. concerning the extent of tribal express is law that Since there no federal fact, we not. do jurisdic- grants Northway tribal court Only Congress prescribe can allocation authority custody dispute in tional over the authority between tribes and states.188 follow, case, it the dis- should because granted, tribal status has been Once country, pute arose outside of Indian concerning tribal disputes executive’s role jurisdiction. Northway is But the without usually power that of an advo- Execu- finds that “the intent of the recognition tribal cate. executive While tive “federal is to Branch” and statutes” non-justiciable, advocacy executive status is jurisdiction- grant Northway tribal court similarly concerning power con- tribal case, authority despite present al contrary, in clusive. To the numerous dis- country.185 absence of Indian As shown be- putes involving the court extent tribal low, intent of the executive neither jurisdiction, rejected Court has any legitimizes branch nor federal statute arguments the executive branch authority.189 supports majority’s urged expansion tribal decision. added). infringes self-gover- (emphasis 186. Id. that the State’s tax at 753 464, nance.” 515 U.S. at 115 S.Ct. 2214. Haldane, 187. See Atkinson v. 569 P.2d 162— Alternatively, tribal em- income earned from (Alaska 1977). country by ployment in members country may have a who reside outside of Indian See, Martinez, e.g., v. Santa Clara Pueblo give enough to Indian rise close nexus 49, 56, (1978) U.S. 98 S.Ct. favoring presumption un- limit, modify ("Congress plenary possibility principle. der the allocative Another powers). or eliminate” tribal will is that the state to tax such income upheld, it was in Chickasaw Nation. See, Contractors, e.g., v. U.S. Strate A-l 117 S.Ct. 137 L.Ed.2d See, e.g., Oklahoma Tax v. Chicka- Comm’n Reina, (1997); Duro v. 2214; Nation, saw 515 U.S. at see (1990); L.Ed.2d 693 Montana supra Part also authorities discussed Dissent V.A. States, 1245, 67 United (1981). Op. 185. at 743. L.Ed.2d 493 Thus, Further, majority wrong opinion the is in apply stat- the canon not does for an- accept Department that we ing must the parties other reason. dispute The to this are arguments jurisdic- Baker, Justice’s on tribal court Anita John and John both of whom way tion this case in the same we are are Native Alaskans. The Native Village of accept Department’s bound to the Interior Northway is an amicus curiae. Baker does determination of tribal status. Northway not want the tribal court to have

jurisdiction case, part this because he rights rights believes his and the of his Statutory B. Analysis adversely will children be by affected the majority assumption acknowledge ap- does not or the tribal court. that, Yet, “general ply majority absent “express applies assumption rule” its “in contrary,” federal law to the tribal favor Native Americans” for John and the beyond country.190 Northway does not extend expense tribe at the of Baker. However, majority does hold that “the Native Since Alaskans are on both sides of Congress, case, intent as revealed the Tribe apply both, the canon should to or Act, ICWA, Act,” List Tribal Justice way, neither. Either it is non-factor. upon bestows Alaska Native courts the Court in Cheyenne Northern jurisdictional authority custody to hear child Tribe recognized Hollowbreast194 has this. disputes arising country.191 outside of Indian The Court stated that when a suit involves upon by None of the statutes relied competing interests of tribes and tribal majority grants to tribal courts members the canon of construction favoring custody parents over child cases between application.”195 Indians “has no arising in None is therefore “express federal needed law” to over- presumption come the against adjudi- 2. ANCSA196 catory authority outside of Indian The majority states “ANCSA itself which should control this case.192 supports] Northway’s jurisdiction

... fact, child In matters.”197 ANCSA 1. The Canon Favoring Construction makes things clear that of all it was Native Inapplicable Amencans Is to do, intended expanding juris- tribal court This Case diction Alaska was not one of them.198 As dissent, demonstrated in II of Section analyzing upon the statutes which it always Alaska Natives have been relies, majority uses the canon of con- non-Natives, the same laws as administered requires struction that courts “resolve am- only by territorial open and state courts biguities in affecting rights statutes both Natives and non-Natives. ANCSA re- Native Americans favor Native Ameri- jected any notion that it should However, interpret- be cans.” it not at all clear to as expanding ed court majority which statute the applying sovereignty any way: “Congress canon. There is no Native statute said, that can ambiguously, cites even finds and declares that —the settlement [of bestow concurrent claims] tribal Native Alaskan land should be ac- courts in Alaska. complished rapidly ... without establishing See, Nation, e.g., 190. Chickasaw 515 U.S. at 194. U.S. L.Ed.2d 274 (1976). 115 S.Ct. 2214. Op. at 195. Id. at 655 n. 96 S.Ct. 1793. See, Tribe, §§ e.g., 196. 43 U.S.C. Apache 1601-29 Mescalero 148-49, 93 S.Ct. 1267. Op. at 753. F.P., Op. (citing at 752-753 In re 843 P.2d (Alaska 1992)). 1601(f). U.S.C. institutions, and in II —the inherent racially issue Venetie

any permanent defined obligations-”199 the issue in DeCo- to tax —with rights, privileges, or power and 2—the inherent teau Footnote Still, proceeds prem- from custody disputes. The jurisdiction over child “Congress did not intend for ANCSA ise loss of Indian consequence of the tribe’s powers adjudicate to to their divest tribes of lost country in that the tribe DeCoteau was members.”200 disputes domestic between custody adjudicate tribal child power to Thus, approach is to at majority’s look longer Indian disputes arising in what was no in and ask wheth- Congress’s ANCSA intent to Venetie II’s citation Footnote abolishing reservations er in Supreme that the of DeCoteau makes clear away important to intended take reserves analytical framework of DeCo- had the Court My sovereignty. is aspects of view in mind the Court examined tribal teau when consequences that from flow different. The power, post-ANCSA, in Alaska. and reservations the revocation of reserves consequences the same as the ANCSA are from the which would result revocation Act205 3. The Tribe List respect any in with tribe Indian Although formally rec- Tribe List Act why That is Fisher the United States. tribes, villages it ognizes Alaska Native as persuasive regard so DeCoteau are any way expand powers. in does not this case. Rather, Department as Interior Court’s decision Venetie villages in Alaska “have the explained, Native my approach. That II201 decision vindicates right, subject general principles Federal that the revocation of reservations shows law, the same Indian to exercise inherent meaning had the same reserves ANCSA delegated available to other authorities country else- the revocation of Indian as principles of federal tribes....” General example, power to tax is an where. For prevented law the North- would ruling But the power.202 inherent Cheyenne from tribal court Fisher ern II that because ANCSA revoked Venetie was assuming a child and did not create new the Venetie reserve dispute tribal members had between country, village types of Vene- country.207 dispute arisen outside of power.203 The could not exercise that tie DeCoteau, Similarly principles general country as said that Indian defined that a South Da- federal Indian law dictated “generally applies ques- § 18 U.S.C. Sisseton-Wahpe- kota court rather than the at of civil ones tions such jurisdiction over ton tribal authorities had County DeCoteau v. District issue here. See involved because the the children there Dist, the Tenth Judicial Court for had Be- reservation been terminated. tribe’s 427 n. 43 L.Ed.2d general principles apply to cause the same (1975).” important rea- This two case, present here the result should First, it is a statement that the exis- sons. Northway jurisdic- that the tribal court lacks of Indian tence or nonexistence villages of Alaska Native tion. The addition “questions jurisdic- of civil determinative nothing Tribe Act does more than to the List Second, and elsewhere. be- tion” Alaska of this result. confirm correctness the ones at issue language cause the “such as immediately by special privileges were not intended the citation That here” is followed analogizes granted Alaska Native tribes is also it to be DeCoteau Footnote 1601(b). 203. 118 S.Ct. at 952-56. 199. Id. Op. at Id. U.S. 140 L.Ed.2d 30

201. 522 479(a)-479(a-l) (1994). §§ 205. 25 U.S.C. 54,366 added). (1993) Fed.Reg. (emphasis 206. 58 See, Tribe, Apache e.g., v. Jicarilla Merrion 455 (1982). Fisher, See 424 U.S. at 96 S.Ct. 943. by Report accompany- expand jurisdie- made clear the House the Act as a means to tribal ing authority. the List Act states that tional Tribe which the sovereignty.

Act neither confers nor denies report 4. The Tribal Act209 This stated: Justice majority’s reliance on Tribal the Jus- The Committee notes ... that there is equally tice is unpersuasive. Act The Tribal litigation extensive on the n primarily establishing, Justice Act' focuses sovereign powers precise of Alaska Native organizing, funding, Depart- within the Tribes. these deserve fur While issues Interior, ment of the the Office of Tribal by Congress, ther nothing review in this Support.210 Justice The Act also establishes enhancing, Act should be construed as di responsibilities, goals, and for funding the minishing, changing any way or in the Secretary working of in the Interior toward status Alaska Native Tribes. It is the of development of and betterment tribal previous intent of Committee its justice systems.211 its “Findings” the Act In. position to taken 1987 amendments protective rights of tribal that have al- the Alaska Native Land Claims Settlement ready by Congress been established or the Act nothing be maintained and that in this nothing courts.212 But the Act extends or on, to, deny any Act shall or Na “confer any bestows additional tribal organization any tive degree sovereign courts. And neither Congress because nor governmental authority over lands ... or Supreme upon has bestowed tribal 100-241, persons in Alaska.” P.L. Section courts the hear child 2(8)(B). requires merely Act [This] disputes arising not in Indian be- the Secretary policy continue current parents, tween neither does the Tribal Jus- including Alaska entities on Native tice Act.213 Federally recognized list of Indian tribes services.[208] eligible which are to receive (ICWA) 5. The Indian Child Act Welfare language plain: Congress This did not a. Extrapolated ICWA Should Not Be intend the Tribe List Act a to be vehicle for expanding diminishing power. But apply tribal ICWA does not to this case. The majority explicitly majority Nevertheless, on the acknowledges relies Tribe this.214 authority List Act change majority the allocation the relies on “the intent of Con jurisdictional authority gress, by over tribal children ... as revealed ICWA” for its holding Northway tribal and state courts as laid between out that the tribal court has decisions of the United custody dispute States over' the child Thus, Court. “construes” the this case.215 We have observed that “a stat in way Act a may forbade —it uses ute form the for a common law basis 103-781, (1994) H.R.Rep. (emphasis 208. No. at pertaining to decide isdiction internal matters added), reprinted membership organization. 3771. U.S.C.C.A.N. tribal See 3601(4) (“Indian possess § U.S.C. tribes the in- herent to establish their form of own §§ 209. U.S.C. 3601-3631 government, Furthermore, justice including systems."). tribal perform tribal courts can and do § 210. Id. 3611. important justice-related hy other functions de- example, ferral and consent. For state law en- 3612, 3613, 3614, §§ Id. may prosecution forcement authorities defer juvenile juvenile offenses with the consent of the 3601(6) ("Congress Id. the Federal may so that the case be a court. handled repeatedly recognized justice courts Directory Dispute Resolution Alaska Outside systems appropriate adjudi- Courts, as tire forums Federal and State Alaska Council Judicial disputes affecting personal proper- cation of (March 1999) at For 11-12. list of extensive rights[.]”). ty courts, performed see services id. at 29-102. say 213. This is tribal courts in Alaska any jurisdiction. They Op. at 747. are left without have dele- jurisdiction, gated as in to which ICWA cases applies, §§ jur- 25 U.S.C. and inherent Id. aim, erecting compass legislative prescribed beyond the applies

rule which beyond the strong that territories inference That observation scope the statute.”216 are not to feel so drawn quotation from Mo- boundaries accompanied by a was Inc.,217 dispensation.” Lines, impact legislative the new which ragne v. States Marine may extrapolat principle indicates when Further, already held that we have gener part made a of legislation and ed from majority en extrapolation that the method extrapolation law and when al decisional regard gages today inappropriate is with Supreme Court place. The not take Services, should Inc. In Catholic Social to ICWA. Moragne against interpret we cautioned v. C.A. A.,221 stated:1 course, not, legislature does of ways beyond The ing extend it its ICWA By policies. the merely general superior enact scope. In that case the intended statute, it indicates its a also terms of an Indian court that under ICWA found the sphere within which conception proceed of the a child’s is entitled to notice of tribe many In cases the policy voluntary parental to have effect. ing is for termination of nothing may though a statute reflect con scope rights, of the statute itself even particular of the the re more than dimensions notice We tained no requirement.222 versed, [ICWA], the of the problem holding enacting that came to attention that “[i]n legislature, inviting the the Congress conclusion has both created defined equally applicable to legislative policy is adoption proceed rights in and termination which mischief is the ... ings. provisions other situations of the Act The define is reinforced identical. This conclusion The a scope rights. the Act strikes of enactment but a conflicting exists not one where there balance between the sometimes legislation dealing children, with series of parents, course interests of 223 situations, generality of Today majority ig of and where the the and their tribes.” underlying the principle attested the admonition nores Social Services’ Catholic jurisdictions. On the legislation Congress, of other it not the is the business of hand, may, create, in order to legislature courts, define, the other limit the to also interests, other, conflicting pre promote regard scope rights to ICWA. of tribal with scribe particularity the compass of ^[224] aim, erecting strong legislative infer Es- Majority Ignores b. Decision The beyond the territories bound ence that Congress sential Protections Which impact not to so drawn are feel aries into Built ICWA legislative the new dispensation.[218] Moreover, assuming even that the Congress explicitly excluded from

Because assumption in its that “the intent coverage correct divorce ICWA’s proceedings219 by ... and, out, Congress, as revealed majority points this exclusion as ICWA,”225 case, majority’s deci- apply could to this encompass child was intended enacting well would still be flawed. proceedings between unmarried as sion ICWA, pro- Congress important two presents a case in crafted married ICWA parents,220 which the ma- recognition conflicting relevant this case Congress in tections which has, jority’s jurisdiction language improvised extension Mo- interests use ignores. particularity ragne, “prescribe[d] with Int'l, Helicopter 694 222. Id. at 1161-62.

216. v. P.2d Hanebuth Bell (Alaska 1984). 146 added); (emphasis also In re Id. at 1160 see 375, 392, (Alaska 1989) ("We T.N.F., U.S. L.Ed.2d P.2d (1970). concerning policy serious reservations judicial exceptions plain lan- creation of ”). omitted). guage (citation ICWA.... Id. Martinez, 1903(1). generally, Clara U.S.C. 224. See Santa Pueblo 56 L.Ed.2d Op. at 746-747. 1989). (Alaska Op. at 754. 221. 783 P.2d 1159 First, provides that before ICWA tribes back to tribe is not advised.... It is subject to state which became recommended that in most cases state reassume P.L. states can judges upon court not be called to deter they approval must obtain Secre- mine or not a whether child’s contacts with tary plan of the Interior to a for reas- a reservation are so limited that a case jurisdiction.226 sumption regulations may should not be This transferred. be a reassumption de- for contain valid consideration since shock of provisions any designed tailed to insure that changing may, cases, cultures in some reassuming appro- has an tribe determination, harmful to the child. This court, organized priately however, parent, can be made who identifying are procedures there clear court.[232] a veto transfer to tribal persons jurisdic- who will be its protections which built into Further, approval of tion.227 notice of a reas- not ICWA will be in available cases decided sumption plan descrip- include a must clear today’s under decision. There will be no jurisdiction territory of the in which will tion organization advance review of the and func- exercised.228 be by agency tion of tribal courts an with the Second, in ICWA cases which outside arise expertise authority to conduct such a country only of tribal courts have review. The territorial of tribal limits courts jurisdiction.”229 what is called “transfer are not or defined established. And the vital jurisdiction only This be with can exercised parental power juris- veto over tribal court parents.230 consent of the both Thus it was diction, power by a which can be exercised judgment the and intent of parent ICWA, either simply under dis- tribal court should not be- reach pensed today’s with under decision. country yond the of Indian boundaries protections The of these loss illustrates the parents agree cases ICWA unless both to the danger extrapolative the by of method used Department of the The of use tribal forum. majority. the Not is the of guidelines Interior interpreting the expanded tribal courts to eases which Con- specifically provision refer to this ICWA gress in enacting considered and excluded power “an absolute over veto transfers” to ICWA, important protections but which Con- parent.231 by courts power tribal either This gress into built ICWA do survive in not the purpose a has which is critical in It Alaska. majority’s jurisdiction. extension of give living parent is to to either of a child not power in Indian the to decide wheth- Assuming VIII. Even Tribal Courts adjudication custody by an er a tribal Sovereign Have Inherent Power to would inappropriate court be the because of Custody Hear Child Not Cases Aris- lack child’s of contact with the its tribe or Country, ing Majority the Department culture. The Interior discusses Decision Is Still Erroneous Because point this its “Guidelines for State It Enables a Tribal to Court Utilize Courts”: Power Over a Non-Tribal Mem- The first four in the criteria earlier version ber all question were directed toward the supported whether the child’s connections the Even if federal case law the majority’s position, by reservation were tenuous that holding so transfer the inher- 1918(a) contrary, pro- 226. 25 cause such shall transfer U.S.C.i tribe, ceeding to the absent objection parent, petition upon either 227. 25 C.F.R. 13.11-12.(1999). parent or custodian either the Indian or the n Provided, Indian child’s tribe: That such trans- 13.14(b). Id. at fer shall to declination tribal such court of tribe. 1911(b) (1994), 229. See 25 U.S.C. which states: any proceeding State Id. court for the foster of, placement care parental termination to, 67,591 (1979). rights Fed.Reg. child 231. 44 an Indian not domiciled or residing within the reservation of the Indian court, tribe, good child’s in the absence of Id. main, “regulate explained, Court ‘the sovereign ] powers [Montana of tribes to ent their powers relations” between internal domestic inherent Indian tribe’ —those beyond did members extend enjoys express powers apart from tribe cases, majority’s decision in child treaty or not provision by statute —‘do ex it today would be erroneous because still of nonmembers tend the activities ”238 of this to individuals extends reach tribe.’ There is members. no who are Throughout inherent its discussion of sov- authority powers expand a tribe’s inherent many majority ereignty, the relies on way. such above, Montana, Wheeler, cited such as cases Sovereign- Tribal Inherent A. Case Law: Reina, support of its conclusion that Only ty Relate to Tñbal Mem- Powers Northway tribal court bers However, only this case.239 near end of Supreme cases that ana opinion try Court to reconcile the does the sovereign lyzed inherent the extent of fact that while the power pertains ty that such have stated concept it relies upon establish tribal matters and tribal members internal sovereignty emphasizes inherent inherent only. majority recognizes, even em members, powers dispute in Thus, in Mon phasizes, this.233 actually ease is tribal this between a member 234 pow “[T]he v. United stated: tana States and nonmember.240 self-government only ... involve ers majority sidesteps by announcing The among members a tribe .... relations supporting on a new rule that is based power tribes their inherent to retain legal authority. That “Because rule is: membership, regulate to do determine subject jurisdiction members, pre only among to tribe matter relations has mestic members, disputes rules of inheritance members.”235 over internal of tribal scribe for only” em authority custody The Court’s “members it has determine in its of inherent sover phasis discussions only are eligible who members or children eignty purposeful, has as was noted been Thus, majority membership.”241 au- 236 in “[In][o]ur Duro v. Reina: the Court jurisdiction thorizes court over cases sovereignty in discussion Wheeler involving Native child where a member both describing in re [w]e ... were consistent parents tribal members and where one are sovereignty tained tribal over the defendant parent is is a tribal member and one not.242 power its membe terms a tribe’s over custody dispute, In a a court child should Thus, powers, de rs.”237 tribal court’s jurisdiction over child and the riving sovereignty, general from its inherent parents The child’s or other custodians. ma- ly do not extend to non-tribal members. jority “only a tribe states that clear in and reem This was made Montana disputes “In phasized the matter over the internal the Court Strate: Strate, 445-46, 1404; Op. 238. U.S. at 117 S.Ct. 233. See at 754-756. 520 Reina, 679, (hold- at 110 S.Ct. 2053 cf. ing sovereignty "the retained tribe as 234. 450 U.S. 101 S.Ct. 67 L.Ed.2d organization govern political and social its (1981). 493 authority does not own affairs include the impose criminal sanctions" on a nonmember In- (first emphasis 235. Id. at 101 S.Ct. 1245 dian who murder on the tribe’s reser- committed added) original, emphasis second and third vation). Wheeler, (quoting U.S. United States (1978)). 55 L.Ed.2d Op. at 755-756. 109 L.Ed.2d Id. at Id. origi- (emphasis Id. nal). 242.Id. nonmember, parents eign power consenting members.” both over a of tribal Where are tribal members this condition satisfied. are follows: par- But is not satisfied when one of the it [(1)] sure, To be tribes retain not a tribal Since “the ents is member. inherent sovereign power to exercise some self-government ...

powers involve forms of civil over non-Indians among of a the relations members tribe” and reservations, on their even on non-Indian “Indian tribes retain their inherent since may regulate, fee through lands. A tribe ... power regulate domestic relations taxation, means, licensing, other members,” jurisdic- among it follows that activities of nonmembers who enter con sovereignty tion based on inherent cannot sensual relationships with the tribe or its disputes involving extend nonmembers. members, through dealing, commercial Accordingly, assuming even that a tribe’s contracts, leases, arrangements. or other powers arising cases not inherent extend to (2) [And, may A ] tribe also retain inherent Northway country, in Indian court should power to exercise civil over the not have in this case because its conduct of non-Indians lands within fee power encompass authority inherent does not its reservation that conduct when threat John, who over is not a member of the ens or politi has some direct effect on the village Northway. Native integrity, cal security, the economic or the tribe.[249] health or welfare of the Montana Do Exceptions Ap- The Not B. Montana exceptions Neither of the two ply applies to this case each specifically because majority states that the consent of a involves the exercise of inherent tribal parent may nonmember “alternative Indian country. That nonmembers for tribal basis court child Thus, not the majority’s case here. cases.” cites Mon- supports claim that “federal law the determi- tana for this consent theory.246 But Mon- nation that tribes have over con- tana does support theory. not senting some nonmembers in situations” is majority’s only Montana references The cite to true the limited context of nonmem- two “Montana exceptions.”247 Supreme one of bers No Strate explains exceptions the two country, case has held that of Indian outside context Montana: “Montana thus of tribal court power de- a has the inherent to that, general jurisdictional a authority scribed rule absent a different exercise over a non- direction, congressional member, consenting tribes lack or otherwise. Because authority support civil over of authority the conduct nonmem- there is no to assertion subject exceptions.” nonmembers, to powers bers” “two inherent over The of two Montana exceptions, upon holding which the ma- this is another basis jority upon authority relies Northway as to enable the tribal court lacks Northway court to inherent exercise sover- this ease.251 it, expressly at 759. 243. Id. tribal civil authorized encompass [to] Id. at nonmembers.” S.Ct. 1404. Montana,

244. 450 U.S. at 101 S.Ct. 1245 Wheeler, (quoting United States v. Montana, 565-66, 249. 450 U.S. at 101 S.Ct. 1245 (1978)). 98 S.Ct. 55 L.Ed.2d 303 (internal omitted) added); (emphasis citations Strate, 446-47, 1404; Op. 520 U.S. at Op. at 759 n. 141. at 759 n.140. Montana, (citing Id. U.S. at Op. at759n.l41. 1245). S.Ct. 251. This conclusion also is consistent with the Strate, See U.S. at general Court’s view of the inherent consenting courts have non- Tribe, Apache members. See v. Jicarilla Merrion exceptions” These Id. “two allow "in 455 U.S. (1982) ("Whatever S.Ct. cer- circumstances, may place tain even where has not consent have in a Subject law does. This was source of Matter Juris- now The C. Absence of Department of Justice. concern for Be Waived diction Cannot General, Attorney and now Then-Assistant of is not context this case Consent Wald, Judge, Patricia voiced D.C. Circuit a reason. trib- for another Whether effective Representative in a letter these concerns arising in Indian not court can hear cases al Udall, of the Committee on Morris Chairman nonmembers members and between Interior and Insular Affairs: subject jurisdiction.252 matter is an issue subject appear to [ICWA] The bill would If, I be- recognizes this.253 family relations matters of certain classes lieve, empowered is the tribal court not persons to the cases nonmember be- hear member versus presently adjudicated in are courts which so, then it does power lacks to do cause it accomplish The bill State courts. would in this case matter that the nonmember regard to three distinct this result with hear her having the tribal court consented categories persons.... One class would powerless court is The tribal still case. of a Another class be members tribe. the lack of hear the case because living on res- would be nontribal members jurisdiction cannot be waived.254 matter ervations, and a third would be nonmem- living bers off reservations. These three Over Non- D. Tribal Court Jurisdiction access to State classes would be denied to State Denies Access members adjudication certain fami- courts for the Unpermit- Courts on the Basis anof ly “good relations matters unless cause” is ted Racial Classification 102(c) the bill. shown under section only do tribes not have inherent Not question general constitutional country, outside over nonmembers is bill] raised whether denial [the mandated powers if were even such but access to courts constitutes invidious State power over Congress, exercise of such racial discrimination violative of fifth constitutionally sus- nonmembers would be Bowling Sharp [Boll- amendment. See v. compli- This is pect racial discrimination. ing Sharpe], [74 U.S. 497 subject. here It is not critical because cated L.Ed. 884] likely But it consent. of John’s variety in the future. of contexts raised support little for the constitu- highlight [T]here I the issue

In this dissent will tionality Department applied this bill as to nontribal by quoting the of Justice’s of from living and analysis legislation it on reservations the of ICWA when was members original by [Supreme] appears applied the rationale the Court drafted. It that first type provide any v. 94 [Morton of did not for version ICWA Mancaría (1974) forum, 2474, 41 the of S.Ct. L.Ed.2d 290 and parental of veto over choice Newkirk, Perry in the creation of demo- 252. See v. 871 P.2d contractual matters and any governments, role (Alaska 1994) (citations omitted) it has little if (noting cratic that one legiti- measuring validity an of of exercise the subject jurisdiction is definition of matter "the authority.... sovereignty sovereign Indian mate is not conditioned judgment power to a over that class of render a on the assent of nonmem- falls”). particular cases within which a one ber.”). through powers Congress, plenary its tribes, always grant tribal courts over Indian can added) ("Because (emphasis Op. 253. See at 759 involving consenting power cases the to hear subject only jurisdiction the tribe has matter of Indian In- nonmembers even outside members, deed, disputes Congress allowing the of tribal it the did in internal is what jurisdiction” authority "transfer in ICWA. See U.S.C. custody only determine of children to 1911(b) (1994). But unless and until eligible membership."). who are or for members by “general speaks, we Montana’s are bound " powers an 'the inherent of Indian rule” Scott, v. 254. See Wanamaker 788 P.2d 713- enjoys apart powers tribe from tribe’—those a (Alaska 1990) (because n. 2 "a court which treaty provision by express statute—‘do not or not is with- does matter of to the activities of nonmembers the extend case, decide a this issue cannot be out waived, Strate, U.S. at tribe.’" any point during Montana, can be raised at and (quoting 450 U.S. at 1245). litigation”). the S.Ct. Court, custody by the child sharing Fisher District arena re- n (1976) ], Recognizing ability L.Ed.2d 106 would sources. the pow and simple save the-bill. The fact is that er of disputes tribes to resolve internal may parents of an child the Indian find their own . can help forums . in.the all.[256] rights altered justice their substantive virtue administration of for simple the fact of of their blood and This statement is a commendable declara- on a The residence reservation. Court has policy. of tion But the fact that this state- never sanctioned such a racial classification just ment that —a declaration of court- rights, denied which substantive we , policy made fundamental issues —raises any persuasive are unable to find reason to judicial restraint, separation powers, about suggest that it would do so. judiciary. role of the regard conclusion Our with nonmem Reina,257 Duro v. living on is even bers reservations more held sovereignty that a tribe’s retained did certain in the context nonmembers liv authority impose not include the situation, criminal ing reservations. In such a off on a sanctions nonmember Indian who had firmly we are convinced that committed murder on the tribe’s reservation. possible may parent non-Indian not be holding despite legiti- Court made this a invidiously against discriminated under concern, court, mate voiced lower provi amendment and fifth “jurisdictional do so so.[255] would create void” this bill sions would do between federal which crimes Arguments Court-developed Policy IX. are might allow the defendant this ease to Inappropriate Upon Basis Which to escape prosecution by either federal or Indi- Base Tribal Court Jurisdiction Supreme Court, an authorities.258 The writing Kennedy for majority, Justice also reasons that the North- unswayed by arguments, was these but re- way court should have concluding ferred to them in paragraph today’s following case based on the rationale: opinion: Tribal over child cases involving member will If present jurisdictional children further the scheme goal proves under both federal state law of practical insufficient to meet serving enforcement, Native best needs of American needs of law reservation then many proper body [T]he children.... fact that problem Alas to address the villages Congress, ka’s Native located are far from which has ultimate cannot, however, the courtrooms of our trial state courts over Indian We affairs. judicial system’s ability limits accept arguments policy our these as a basis many respond to the needs Alaska finding Na that is in By jurisdic .... acknowledging tives precedent, history, consistent with and the tion, we opportunity equal enhance the for Na treatment Native American eiti- zens.[259] villages cooperate tive and to the state in (1978) (em- H.R.Rep. country, No. 35-38 cause it of at arose outside the added), phasis reprinted in U.S.C.C.A.N. DeCoteau Court declared that it would not enter- policy arguments why removing 7560-61. tain on jurisdiction custody matters would be harm- ful to Op. the tribe: at 760-761. Appeals Until the Court of altered the status

257. 495 U.S. 109 L.Ed.2d quo, jurisdiction South Dakota had exercised over the unallotted of the land former reserva- years. tion for some 80 Counsel for the tribal at Id. argument many members stated at oral that the Indians have resented and added). (emphasis Id. at 110 S.Ct. 2053 suffered under for the it. Counsel state denied argued jurisdic- in The Court DeCoteau made a similar statement. this and end that an to state the Once Court determined the tribe’s tion reser- would be calamitous for all the residents terminated, area, had and vation been therefore the and non-Indian alike. belonged competing pleas adjudge, child case in state court be- These are not us to for case, implies, incorrectly, that majority The this interesting postscript to this In an always the But such has been case.262 a passed almost immediate- a statute regime departure a from the the would be radical ly that corrected after the Reina decision Nevertheless, majority supports past.263 “jurisdictional problem of void.”260 by relying Santa Clara Thus, case, system of this conclusion on separation in that our Martinez,264 which held tribes interpreted Pueblo v. courts powers worked —the own “power have the to make their substan existing prece- statutes and the law based matters, to tive in internal and enforce dent, Congress, policy ar- law persuaded and 265 But jurisdictional in their own forums.” Santa existing tribal law guments that inapplicable this Clara Pueblo is case. passed legislation inadequate, schemes were That involved a of the Santa rectify and case member to enhance children, all tribe and her Clara Pueblo problem. and were on the Santa whom lived raised Today, majority attempts to short-cir- reason, Clara For that Reservation system, by striking into an area— cuit this authority. principle allocative favored tribal expansion tribal court contrast, By pres none of the events solely policy arguments' based on is—that place on land ent took reservation case Congress. If there is a need for realm of country, other and therefore the allo- country tribal court out-of-Indian authority. principle cative favors state As I custody disputes parents between of Indi- below, ignores majority’s show conclusion children, processes democratic are this also important distinction and conflicts can this Alaska’s place which address need. purpose and its P.L. 280 subse knowledge- Congressman and are Senators quent amendments. responsive able about the needs Natives. If there is ease to be Alaska A. Case Law expanded tribal court made Congressman well-posi- our are Senators in Part V of The discussion above this presentation. make It tioned to an effective principle the allocative dissent discusses court, Congress, compe- which not this Northway whether tribal court terms of limi- tent to decide what is needed what jurisdiction in this or state court has ease. protections appropriate. tations and are applies This also principle determina- applies tion of which law—state or tribal — Law Applies X. State Outside Indian given regardless tribunal case of which Country jurisdiction. plain language of the allo- makes clear: principle concludes the tribal cative “Absent contrary, may apply express law to court its own laws and customs federal Indians going beyond implies this case and that such tribal laws reservation boundaries have apply they generally even if conflict with state been held to non-discnmi- laws.261 [determining recently long- “[T]he task whether state has for our the former As the said: standing jurisdictional regime reservation had been terminated and therefore and settled under- country] apply standing [is was not Indian is a narrow one. in Alaska state laws all that] added). Alaskans, (emphasis regard particular 420 U.S. at without to the com- that, they similarly especially munity tioner, We have stated in which live.” See Brief for Peti- Venetie, Village competence where v. areas we lack institutional State Alaska Native authority, generally we should not make decisions 1997 WL *93. See the "His- policy Setting” supra based on See Industrial Indem. Dissent Part rationales. torical discussion II. State, (Alaska 1983) Co. 669 P.2d ("[C]ourts policy must not intrude into realms of 264. 56 L.Ed.2d competence."). exceeding their institutional (1978). Strate, 446 n. 260. See 520 U.S. at 117 S.Ct. Pueblo, Op. (quoting 265. at 755-756 Santa Clara 1404. 55-56, (citations 436 U.S. at 98 S.Ct. 1670 omit- ted)). Op. 261. 761. Pueblo, 266. Clara U.S. at Santa 262. Id. at 755-756. 1670. applicable natory traps law to all strong state otherwise traditional use of fish was always given community citizens of the This has that the State.” Kake Indian was Thus, “entirely even if dependent upon fishing.”277 the case Alaska.268 one salmon been assumes, purposes Yet, as I do of the important'interest give way this had to section, Northway that the discussion to state law did because the tribe not reside case, court has in this it does not expressly on reservation and law no federal logically follow law that tribal controls. To permitted ignore it to Alaska law. For simi contrary, because this case arose outside reasons, lar because there is no au statute country, principle of Indian allocative thorizing apply tribal courts to tribal law to state, tribal, requires application not custody disputes by child covered not ICWA law. arising country, tribal cus tody give way laws must they state law if argument, majority,

The made conflict. Supreme contemplated ap- Court never plying principle the allocative to situations majority’s allowing law, The decision like those in tribal membership Alaska where country, trump of Indian outside state law separated country,269 has been from Indian simply ignores Kake, Apache Mescalero just incorrect. Solem v. Bartlett did that.270 Tribe, DeCoteau, Solem, II, Venetie and the Moreover, the tribe in DeCoteau had lost its principle other cases that establish way reservation in much those tribes that Indians outside of Indian are did, by had reserves Alaska an act of laws. Congress.271 Supreme Yet the Court in De- application Coteau confirmed the of state law B. Requires Section Public Law 280 U of general principle under the allocative to a that the Applied Laws in Tribal Court child case which involved tribal chil- Must be Consistent with State Law residing dren boundaries within the majority’s is also decision mistaken former reservation but not Indian coun- 4(c) ignores because it section of P.L. 280. And, II, try.272 Supreme Venetie This section states: application prin- confirmed the of this Any tribal ordinance or custom heretofore ciple in its most recent Indian law case aris- tribe, or adopted hereafter an Indian ing from Alaska.273 band, community any in the exercise of applied Court also the alloca- authority shall, may possess which it if not principle Organized tive Natives in Alaska any applicable inconsistent with civil law of Village Kake.274 There the Court noted State, given full force and effect in provided that Kake Natives had not “been the determination of civil causes of action reservation,” with a and there was “no statu section.[278] pursuant to this tory Secretary under which might permit operate Interior language straightfor- fish The [Kake] of this statute is traps Thus, contrary law.” to state ward: case of conflict between state and law, fishing Court held that applied provides Alaska’s laws P.L. state law to the tribe.276 in continuing governs. The interest Tribe, 427-28, Apache

267. Mescalero U.S. at Id. at 95 S.Ct. 1082. omitted) (string (empha- 93 S.Ct. 1267 citations added). sis supra 273. See Part discussion Dissent V.A. supra 268. See Dissent Part II. 274. 369 U.S. L.Ed.2d 573 Op. at 754. Id. at 82 S.Ct. 562. (Court 270. 465 U.S. at S.Ct. 1161 ana- that, ANCSA, Id. lyzing congressional act like "un- coupled [of reservation status from land] ownership.”.). Id. at (1994). 1360(c) 271. 420 U.S. at 95 S.Ct. 1082. 28 U.S.C. view, requires my clearly P.L. 280 state applying to read this section as

To govern in conflict be erroneous law to case of between in state would litigation courts majority conflicting The it would allow two sets of and tribal holds because state law. transaction or occur- be govern the same Thus law can circum- laws otherwise. state cus- example, prohibits litigant For state law if files in tribal court rence. vented one gender.279 The tody preferences based on court. the other in state Con- before files contrary. may some tribes be to enacting laws of found that gress, in P.L. Indi- employ “tender They may, example, for by the “extension of ans would be benefitted by law.280 years” rejected state presumption country.283 civil to” Indian State example, provides law “truly state As another first goal making a Indians With custody dispute parent a a citizen[s],”284 between a Congress “deemed desir- class parent preferred non-parent, be extension to reservations “the sub- able” the custody showing parental a clear respective absent civil states stantive laws of The laws of harmful to child.281 general applica- will be as those are of insofar laws may And as a third be different. persons some tribes private private proper- tion to or example, provides law for scheduled state ty....”285 It clear that model seems paid by obligor par- support to be child that Indian Congress had mind was coun- replicate may tribes not this governed by ent.282 Some try be in P.L. 280 states would By general schedule. application. laws of neces- state sary implication, Congress must also have provide particular a cus- If laws for tribal govern that state laws would out- intended litigant who will benefit preference todial there country, of Indian and that would side strong incen- by preference will have a be, holds, majority as the sets conflict- or before his her tive to file tribal court litigant ing laws which can be selected reverse of opponent files state court. The wins a race to a courthouse.286 who also true. if tribal courts are course is And support the state schedule not bound child support or provide either lower child Tompkins v. C. The Rationale Erie all, potential obligor parents will

none at majority’s ignores fun strong file their cases in The result also have a incentive to case, potential obligees file in rationale of the landmark courts before damental tribal Tompkins.287 Erie Erie Railroad Co. state court. See, Johnson, designed e.g., way the law more P.2d 71 ensure that favor- Johnson v. 1977). (Alaska party’s position governs the able to the case. majority "[a] tribe’s in- assures us years pre- 280. We have described the tender give tribal herent does not courts young sumption chil- "[A] as follows: mother authority, disputes priority, presumptive or generally given preference for dren will custo- involving Op. at -. tribal members.” But evenly dy factors balanced.” Id. if the other are the breadth of own understates its expressly rejected presump- We have at 73. today's holding. holding decision is that Id. at 75. tion. non-Native) (Native parent of a child if a eligible who is a member or Pannick, (Alaska Turner v. P.2d 1051 membership, see files a dis- id. at 1975). pute proceedings in tribal are court before initiated, has tribal court R. Civ. 282. See Alaska P. 90.3. only get State the case. courts can involved ruling through comity after the court's (1953), S.Rep. reprinted No. 699 in 1953 circumstances, then, proceedings. In such to- U.S.C.C.A.N. 2411-12. day’s clearly grant priority decision is a presumptive tribal courts. 284. Mat 2411. 82 L.Ed. 1188 287.304 285. Id. at 2412. One Court Justice called important "one of the cases law in Eñe most Friedenthal, legal history!" system party H. adversarial each will at- American Jack In an Kane, Miller, advantage. Mary Kay tempt Arthur R. Civil Proce- to use the law to or her best & his ed.1993) dure, (2d (quoting § 4.2 at & n.3 If two sets of laws cover the same transaction or Black). dispute, party to act in Justice it is rational for each which held that XI. Conclusion Tyson,288 v. overruled Swift courts, diversity, sitting in were not

federal today majority’s opinion very The is broad. prior necessarily by bound the decisions of (1) It holds that a tribe to being courts of the law was the states whose adjudicate arising child cases not in courts, Rather, applied. in the inter federal country, contrary general prin- to the law, developing “general” federal ests ciple that allocates functions between tribes independently the state could evaluate law at states, contrary and and two to United States issue, reaching if a even that meant result Supreme Court decisions which have stated a state different from that which court would in custody that cases tribal based reach.289 sovereignty inherent on does not extend to Erie, Tyson In doctrine was (2) Swift arising cases not abandoned, part, “rights it made because many contrary the face of decades of Su- enjoyed ‘general under the unwritten law5 preme precedent, congres- and without vary according to whether enforcement was authorization, sional it that holds Alaska Na- sought in the state in the federal court” or tives, country, subject outside of Indian are prevented uniformity it and “had the ad law, to even if such laws conflict with ministration of the law of the state.”290 (3) gives it those the state. And Thus, maintaining Erie’s focus was jurisdictional authority any par- courts uniformity regardless law substantive (tribal not, ent member or and Native Alas- litigants. by the forum chosen As Jus not) kan or of a child is a tribal who member Frankfurter in a later case: tice wrote “The eligible membership.292 for tribal Given policy nub of the Erie R. Co. v. underlies large number of Native Alaskans Tompkins is same that for the transaction significant and number of chil- party accident [a of a suit to the marriages relationships dren born from dispute] in a instead of in federal court non-Natives, Natives num- between away, court a block should not lead State to ber Alaskan who will find them- citizens substantially different result.”291 subject mandatory jur- selves tribal court very large.294 isdiction majority’s allowing decision tribal law trump problem state law creates Today’s many raises decision also more sought progeny Erie and its to correct. questions troubling than it answers. I men- breaking a marriage up, today’s When just tion a few. party will for each decision create incentives (1) marriage type to the first the forum What of tribal court file and kind will thought empowered authority whose laws are to be more con- favorable. to exercise Again, very unlikely by today’s it is in- ferred decision? result, speaks they

tended such a it is as if difficult to see about tribal courts are all any law-making Indeed, They they how rational same. could the are not. are permit structure, that it markedly believe is desirable conflict- different in terms of size, ing govern expertise, experience.295 Sovereign laws to the same transaction. U.S.(16 Pet.) 1, (1842). given 288. 41 10 L.Ed. 865 tribal court Alaska geographically "membership limitless sover- Swift, 41 U.S. at 13. eignty” theory majority, recognized unexplored parameters personal jurisdic- 74-75, Erie, 304 U.S. at S.Ct. 817. jurisdic- village tion in the context of tribal court Op. tion. See York, Guaranty Trust Co. v. 89 L.Ed. 2079 Directory Dispute 295.See Resolution In Alaska Courts, Outside Federal and Council, Alaska Judicial State Op. at 759. villages March at 29-102. Most perform quasi-judicial mediation and roles supra 293. See note 1. through village The formation of their council. many development, It should courts but also be noted as such is a recent as of 30,000 writing twenty-three villages more than ethnic Native Alaskans who do have done so. Alaska, may significant villages supra not live in note Id. at 11. A exer- see also be number §04 extended, give personal a suffice to tribal court via the Bureau of Indi- contacts was

status List, Recognition jurisdiction? to 226 an Affairs Tribal all such in Alaska.296 Will Native entities (4)More in, within Alaskans live or Native functions? sovereigns tribal court exercise of, easy by driving distance cities served populations of fewer villages with Even those villages than live in distant superior courts fifty people?297 than superior many Native from courts.302 And (2) by the are not bound Tribal courts very villages far from with Alaskans live the As Justice Ste- States Constitution. United they example, are associated. For which Apache noted in Merrion Jicarilla vens (more 20,000) than of all resi- about one-fifth Tribe, discriminatory may “Tribes enforce Municipality live Native Alaskans in the dent non- intolerable a rules that would be By making Anchorage.303 these Native of community. protection equal subject to the of distant Alaskans Fifth Fourteenth components the and of courts, today’s village will decision cre- Amendments, limit or state which federal very majority believes it problem ate the authority, similarly pow- do limit tribal not problem solving namely, requiring of is — 298 apply consenting will er.” What rules long travel Native Alaskans to distances nonmembers, nonconsenting nonmem- or custody disputes adjudicated? their have bers? born And will the interests children and (3) The held that the Supreme Court has raised, Anchorage example, best 299 tax,” powers prescribe “to “to and enforce place if take their child cases served laws,” regulate “to domestic internal criminal villages in distant about tribal courts members,” prescribe among and “to relations Indeed, nothing? they know little or which 300 members,” all de- rules inheritance for children, no of Native mat- will interests sovereign power. inherent rive from tribe’s reside, if their they where be best served ter Today, majority holds the child cus- that parents are allowed a tribal non-eustodial component tody of the domestic relations sig- that pay support order to child is court power beyond Indian Does extends nificantly they pay than would under less logically today’s it follow from decision that Alaska Civil Rule 90.3? mem- tribal criminal and tort law will follow ques- these I do know the answers to country? a vil- bers outside of Indian Can of, however, thing I am tions. One that sure lage council on the Tanana River exercise its that the ramifications of case will be sovereign powers prescribe rules of inheri- many years. litigation felt for Confusion members, including its those who tance for try proliferate as state and tribal courts will Anchorage Angeles, Los or Lon- live or consequences opinion. out the of this to work limits, geographical What if don? are Finally, any, important note what this “membership sovereignty”301 to the it is majority ultimately recognizes today? And what case is about —the balance of trib- judicial may quasi-judicial Id. Act See Santa Clara cise no functions. be unenforceable. Martinez, 49, 59, Pueblo v. (1978). 56 106 L.Ed.2d supra 296. See note 32. Tribe, Apache U.S. at 102 299. Jicarilla Matal, Joseph History A D. Revisionist S.Ct. 894. Country, 14 Alaska L.Rev. 349 n.517. many villages Matal notes there are Montana, U.S. at S.Ct. 1245. villages fifty people fewer than four populations people. of fewer than ten Id. Op. at 754-755. 298. 455 71 L.Ed.2d Report the Alaska Court Adviso- (1982) (Stevens, J., dissenting). The Comm, Access, ry app. G on Fairness all, some, Rights imposes Civil Act but not (1997). protections Rights tribes. See of the Bill seemingly U.S.C. But the Act is Estimates, corpus, only by Population enforceable a writ 303. Alaska of habeas Overview: Ethnicity, involving Population which means that in cases not deten- Estimate Race (Alaska Labor). person recognizable Dep't tion of under writ power question state Alaska. As Chief its essence the here is al and within whether un Rehnquist Washington stated in v. der the this case Justice circumstances of the laws of require Tribes Colville Indian the United States plenary Confederated Reservation, is not give way power. “[a]t issue here Indi sovereignty, necessarily given by but also state The answer “yes.” 304 sovereignty plenary power Appropriate regard as well.” The for the Alaska Constitu requires state under the Constitution Alaska tion that such an answer not be by system applied given uniform asserted laws unless are federal there laws which citizens, by require equally to all authority. courts cession of state Because judicial sys exist, “shall I respectfully which constitute a unified such laws do not dissent. 305 ...” tem. The in this case result cannot pass muster under Alaska Constitution ADDENDUM: P.L. 280 HISTORY by mandated law. unless federal Reduced to AND ANALYSIS

TABLE OF CONTENTS I.P.L. 280: Introduction. o LQ A. P.L. 280 and Amendments. o IQ B. and P.L. 280 . o OO II.P.L. A. The B. Contemporaneous 280 As 1970Amendment Amended Conferred Administrative Construction P.L. 280 . Exclusive Jurisdiction ... 00O ZD ^[00] I—i h-L 00O CO III.Conclusion. . 813 courts, I. P.L. 280: Introduction and because I including believe one, required will this soon be to address the (P.L.) briefly discussing After Public Law disjunction by majority, I mentioned set State, Village 280 and Native Nenana v. my forth views on this issue. For the rea- Services,1 Department Health & Social below, sons outlined I continue to believe majority concludes that “it is neither neces- properly granted Nenana that P.L. held 280 sary appropriate nor at time to reach jurisdiction in states exclusive child question of progeny whether and its Nenana matters. wrongly were decided.”2 The then today notes that its decision “creates a dis- A. P.L. 280 and Amendments junction in jurisprudence” Indian law be- 4 it country cause leaves tribes without Indian P.L. 280 was enacted 1953 and amend- greater powers than with those ed 19585 and Because 1970.6 sections of country.3 interrelated, appellant Because the and amici P.L. 280 are I have set out the urge margin.7 us overrule the Nenana line of cases text of the act in the 134, 181, 25, 1970, 91-523, 304. 447 U.S. 65 Act of 6. November Pub.L. 84 J., (1980) (codified (Rehnquist, concurring 10 § L.Ed.2d Stat. 1358 18 U.S.C. 1321-26, 1360). part). §§ § U.S.C. 28 U.S.C. IV, § Alaska 305. Const. art. relevant text of P.L. as enacted in 1953 subsequent is set out below with amendments. 1986), (Alaska denied, 1. 722 P.2d 219 cert. * The 1958 amendments are redlined while the capital- 1970 amendments are crossed out and by ized. All amendments are followed the date Op. at 748. of the amendment. at 748 n. 44. Id. § 1162. State over offenses by against committed or Indians in the Indian 15, 1953, 83-280, August 4. Act Pub.L. Stat. country (codified § as 18 U.S.C. amended at (a) Each of the or States Territories f8/8/581 1321-26, 1360). §§ § 25 U.S.C. 28 U.S.C. following jurisdic- listed in the table shall have 85-615, August by against Act Pub.L. tion over Stat. offenses committed or (codified § as amended at U.S.C. Indians in the areas of listed Territory 1360). §§ opposite 25 U.S.C. 28 U.S.C. the name the State or that are of juris- civil laws of such State criminal civil those P.L. 280 conferred “mandatory” general application private persons or five states: Califor- diction on Minnesota, Nebraska, Oregon, nia, and Wis- private property shall have the same force provided that each state would have consin.8 Section over offenses committed the criminal portion, they and effect within ^[11] have elsewhere within such Indian State... . against in the areas of Indian Indians Important provisos were added subsec- country ... the same extent that such (b) (c) (b) tions of section Subsection jurisdiction over offenses com State has taxation emphasized that alienation or State, mitted within the elsewhere property trust was not autho- or restricted shall criminal laws of such State (c), tribal ordi- rized.12 subsection Under within same force and effect such given effect or customs were to be in nances country they as have elsewhere within adjudication civil “if not cases inconsis- Stated.[9] any applicable law of the tent civil with jurisdiction: 4 conferred civil Section State....”13 ... of the listed Each States shall causes of be over civil action congressional reports Comprehensive ac- are

tween or to which Indians Indians companied P.L. 280. The essence parties which arise country listed.... ^[10] in the areas of Indian legislative history is contained in three graphs in the Report of the House Commit- para- Affairs, tee on Interior Insular which provided 4 also that state civil laws Section subsequently incorporated was into the Sen- apply general application in Indian should they Report: ate country as do elsewhere: any rights, belonging tribe, band, any or Indian to the same extent that such State or Indian F8/8/581 Territory community [8/8/581 is held in over offenses or trust within tire State Terri- United States or is restric- committed elsewhere tory F8/8/581, or imposed by against criminal the United and the laws of such tion alienation Territory States; regulation 18/8/58] State or shall have the same or shall authorize use country property within such Indian in manner inconsistent with force effect such they tory treaty, any agreement, within the Terri- statute have elsewhere State or Federal or or thereto; any regulation pursuant [8/8/58]: made or with Territory tribe, deprive any any country Indian [8/8/58] shall Indian or State or Indian band, community any right, privilege, or or affected Territory treaty, agree- country' immunity Alaska All within-t-he afforded under Federal Indian ment, hunting, respect trap- with [8/8/-S8][11/25/70] or statute control, licensing, fishing ping, ALASKA ALL WITHIN or INDIAN COUNTRY or or STATE, regulation EXCEPT ON THE THAT thereof. ISLANDS, (c) provisions ANNETTE THE METLA- 1152 and The sections chapter applicable INDIAN MAY KATLA COMMUNITY of this shall not be within country OVER EXERCISE JURISDICTION tlie areas of Indian listed subsection (a) AS OFFENSES COMMITTEDBY INDI- of this section AREAS OVER WHICH ANS THE SAME IN THE STATES HAVE EXCLUSIVE IN MANNER SEVERAL SUCH JURISDICTION [11/25/70] WHICH JURISDICTION. * Underlining BE EXERCISED BY MAY INDIAN Editor's Note: is used indi INDIAN COUNTRY TRIBES IN cate redlined material. STATE OVER WHICH JURISDIC- August 8. NOT BEEN Act Pub.L. Stat. TION HAS EXTEND- ED. [11/25/70] country All State. California Indian within the State, country Minnesota All within the Indian Id. except Red Lake Reservation. country Nebraska All the State. State, Indian within Id. country Oregon All Indian within the except Springs the Warm Reservation. Id. State, All

Wisconsin Indian within the Reservation, except the Menominee Id. (b) Nothing this section shall authorize encumbrance, alienation, or taxation of any personal property, including real or water Id. legislation general, Need for such on a Committee on Interior and Insular Affairs grounded rather than distill limited basis is the reasons for this amendment: following: jurisdic- These States lack One of the needs for the enactment of prosecute tion to Indians for most proposed legislation offenses is due to a deci- committed on Indian reservations or other sion of the United States District Court for country, exceptions. with limited the District of Alaska cases of re (No. A-13,363) applicability McCord of Federal criminal laws and In re Nicka- (No. A-13,364), having States norka reservations is also wherein the defen- charged limited. The dants were statutory rape United States district courts under the have a measure of Territorial law of over of- Alaska. The (1) court held that the fenses committed on Indian Territorial law reservations did apply because the country by against or other Indian incident occurred in Indi- (2) ans, but cases of Federal offenses committed law mentioned above popularly against Indians re- Indians that (18 Major ferred to as the Ten Crimes Act major limited to the so-called 10 crimes: 1153) apply U.S.C. murder, did not because incest, statuto- manslaughter, rape, assault ry rape is not included the Federal kill, with intent to dangerous assault with a rape. crime of arson, defendants were weapon, burglary, robbery, and lar- therefore released. ceny. construing In the Federal statute the matter, practical aAs the enforcement court also decided that village the native among of law-and order the Indians in the Alaska, Tyonek, occurred, rape where the country Indian largely has been left to the came within the definition of Indian coun- groups Indian many themselves. In try. Such a large construction affects States, adequately organized tribes are not number of villages other in native Alaska perform function; to consequently, similarly situated. The committee has there has been created a hiatus in law- been advised that villages these native do enforcement that could best be adequate machinery have for enforcing by conferring jurisdic- remedied criminal They law and court, order. have no tribal tion on indicating ability States and police, code, no no criminal many and in willingness accept responsibility. to such organization. instances no formal This is Similarly, the Indians of several States for the reason that the govern- Territorial stage have reached a of acculturation and in ment Alaska has maintained law and development that makes desirable exten in villages order the native as well as in sion of civil State to the Indian the rest of Alaska and the native tribal country Permitting within their borders. councils have had no reason to nor have adjudicate the State courts to civil contro they ever exercised these functions. Since arising reservations,

versies on Indian prepared the natives are not to take over to extend to those reservations the sub activities, these the recent court decision respective stantive civil laws of the States villages left people and the without insofar as general appli those laws are of protection. legislation The instant seeks private persons cation to private proper remedy what, to restoring situation desirable.[14] ty, is deemed decision, until the court was the actual practice in the enforcement of P.L. 85-615 the law extended both the country the Indian provisions criminal and civil Alaska. of P.L. 280 to country” “all Indian within Alaska.15 Three The bill also extends the Territorial law paragraphs Report from the country regard Senate of Alaska to Indian with (1953), S.Rep. reprinted No. 83-699 applicable in 1953 of Indians to Federal laws to Indians report begins U.S.C.C.A.N. 2411-12. The as such.” Id. at 2409. lengthy explanation with a committee's general pieces aims reflected in numerous August 15. Act of Pub.L. 72 Stat. legislation during the session: "withdrawal of responsibility Federal for Indian affairs wherever practicable, subjection and ... termination of the Nevertheless, has made state- consistent the Court This action is

civil matters. jurisdic- suggestive ments of exclusive state previous Congress, as enactments of Na- example, For Yakima Indian tion. Con Public Law 83d case of tion, Washington enacted a law the state of jurisdic gress, whereby criminal civil whereby it criminal and civil “[f]ull assumed the States tion over Indian within juiisdiction permitted extent to the Nebraska, California, Minnesota, Ore all 280” which “extended to Pub.L. but gon, was transferred and Wisconsin and to every lands Indian reservation fee States.[16] those lands therein when non- trust and allotted again P.L. In 1970 amended analyzing the Indians involved.”23 In were by enacting P.L. 91-523 ex- P.L. 91-523. statute, of this Court stated effect community cepted the Metlakatla “[sjtate jurisdiction complete all non- as to of Indian from area complete Indians on is also reservations Alaska, criminal the exclusive reser- [on as to Indians nontrust lands 1162(a) (section 2 of changing 18 U.S.C. vation].” 280).17 P.L. And it described the Earlier, Organized Village Kake country subject criminal apparently en- Egan,25 mandatory over which states “areas P.L. granted the view that exclu- dorsed jurisdic- several exclusive States jurisdiction to the states: sive tion.” Congress granted In 1953 to several States legislative history of amend- the 1970 civil criminal full and I it at ment is extensive will discuss reservations, consenting as to the length in this addendum.19 It some later jurisdiction by any sumption addi of such purposes suffices for this introduction making adequate provision tional States quote “Purpose” sentence section of one 588, 18 this in future. 67 Stat. Report: the House 1162, § § U.S.C. 1360. Alaska U.S.C. 28 proposed legislation purpose of was added to the list such States 18, 1162 is to amend section of title United 1958, 72 This disclaims Stat. 545. statute Code, by adding language permit States permit States to interfere intention community ting on the Metlakatla Indian federally fishing or granted privileges with to exercise Annette Islands Alaska property.[26] uses of jurisdiction over minor offenses concurrent Na- “complete” The words Yakima Indian Alaska.[20] with the State logi- “full” in Kake are most tion and terms exclusive, cally than associated with rather Supreme B. The Court and P.L. 280 concurrent, jurisdiction. Further, Bartlett,27 Washington v. Bands and court v. Solem Confederated Nation,21 implied jurisdic Yakima strongly Tribes that state criminal concurrent, ques- exclusive, declined address the rather than tion jurisdiction, stating In “[Within tion of whether P.L. 280 conferred exclusive that: jur- jurisdiction country] or the states.22 dian Tribes exercise concurrent concurrent on 32, (1958), S.Rep. reprinted in 22. Id. at 99 S.Ct. 740. 16. No. 85-1872 488-89 n. 3347, 3348. U.S.C.C.A.N. 475, 23. Id. at S.Ct. 740. 25, 91-523, 1970, Act of November Pub.L. Stat. 1358. added). 498, (emphasis Id. at 99 S.Ct. added). (emphasis Id. 7 L.Ed.2d 573 25. 369 U.S. 19. See Addendum Part II.A. Dissent (1962). infra (1970), reprinted H.R.Rep. 91-1545 No. added). (emphasis 82 S.Ct. 562 Id. 1970 U.S.C.C.A.N. 27. 465 U.S. 79 L.Ed.2d 21. 439 (1984). jurisdiction over isdietion certain minor crimes Indi over child proceedi ans, § However, 18 U.S.C. ngs.”36 unless a State reassumption permit jurisdiction § has assumed under presents [P.L. ted if the tribe “a plan suitable § 2].”28 jurisdiction” to exercise such to the Secre tary of Secretary the Interior and ap The Court also addressed the extent of proves plan.37 reassumption No plan had jurisdiction state civil under P.L. 280 in approved Nenana,38 been but Nenana ar Bryan County29 v. Itasca California gued unnecessary that this was because P.L. Indians,30 Cabazon Band Mission Ac- preempt jurisdiction 280 did not its and that Court, cording to the section 4 of P.L. 280 jurisdiction it continued to have concurrent “primarily was intended to redress the lack with the state over children’s matters. We adequate resolving pri- forums for rejected this contention and concluded that legal disputes vate between reservation Indi- “Congress intended that give Public Law 280 clearly ans.”31 The Court stated states, Alaska, certain including exclusive jurisdiction did not include the to tax jurisdiction... .”39 We followed Nenana in “general regulatory authority”; civil how- In re K.E.40and In re F.P.41 ever, “grant section of P.L. 280 did States jurisdiction private litigation Nenana, over civil involv- I believe K.E. and F.P. were ing reservation Indians in correctly court[s].”32 state Congress decided. explicit- in 1970 Authority private litigation civil ly is the described the country subject present in the issue case. under P.L. 280 “as areas over which the several States have exclusive II. P.L. 280 As Amended Exclu- jurisdiction.”42 The Conferred 1970 amendment was sive Jurisdiction prior consistent with the text of P.L. 280 Department which the of the Interior inter- Village State, In Native Nenana v. De- preted bestowing exclusive Services,33 partment Health & Social we the states.43 grants held that P.L. 280 Alaska exclusive adjudicate involving cases A. The 1970Amendment to P.L. 280 custody of Native children.34 The issue arose the context aof child-in-need-of-aid In 1970 enacted P.L. proceeding in village which the of Nenana which amended the codification of P.L. 280 sought to transfer from the state set out in 18 U.S.C. 1162.44 The area of court under the Indian Child Welfare Act.35 Indian in which the State of Alaska 1918(a) act, Under section “any of that granted Indi- jurisdiction was criminal was juris- tribe which became to State changed in section 1 from “all Indian coun- pursuant diction “may to” P.L. try” State, 280 reassume country to Indian “[a]ll within the 2, 28. Id. (emphasis 1918(a)). at 465 n. (citing 104 S.Ct. 1161 § Id. at 221 25 U.S.C. added). 1918(a). § 37. 25 U.S.C. 373, 2102,

29. 426 U.S. 96 S.Ct. 48 L.Ed.2d 710 (1976). Nenana, 722 P.2d at 221. 202, 1083,

30. 107 S.Ct. 94 L.Ed.2d 244 Id. (1987). 1173, 383, (Alaska 1987). 40. 744 Bryan, P.2d 1174 426 U.S. at 96 S.Ct. 2102. Indians, Band Mission Cabazon 480 U.S. at 1214, of (Alaska 1992). 41. 843 P.2d 1215 208, (citing Bryan, 107 S.Ct. 1083 426 U.S. at 385, 388-90, 2102). 25, 1970, 91-523, 42. Act of November Pub.L. 84 Stat. 1358. (Alaska 1986), denied, 33. 722 P.2d 219 cert. 479 43. See Dissent Addendum Part II.B. infra Id. at 221. 44. Act of November Pub.L. 35.Id. at 220. Stat. 1358. Islands, the elude to confer on except that on Annette Metlakat- intended community may jurisdic- jurisdiction, Indian la exercise the states exclusive criminal but by only jurisdiction. Indeed, tion over offenses committed Indians civil concurrent jurisdiction such the same manner in which reported Department of Interior to may by tribes in Indian Congress respect be exercised Indian with the 1970 amend- to jurisdiction country not over which State has applicable ment P.L. when made remove, language extended.”45 This contrasts been Alaska, excep- “acted to limited exceptions pertain- with the for reservations tions, civil and criminal jurisdiction ing to other in section of P.L. 280. states purposes previously by law and order held example, For coun- Minnesota groups native and the Indian and Federal countiy try is affected “all within of Government.”49 The first section State, except Red Lake Reservation.”46 Congress’s 1970 amendment thus reflected The reason for the difference was well con- Alaska, applied P.L. as belief that reservations, excepted On as sidered. such jurisdiction granted to the state. exclusive Lake, the law P.L. Red writ of state under the 1970 Section amendment reflects Metlakatla, respect run. 280 did not With merely Congress: more than belief of law Congress intended that would con- (c) of section 1162 of title Subsection apply tinue to but that the Metlakatla Indian Code, to read United States is-amended community jurisdic- would concurrent “(c) provisions follows: of section 1152 by those tion over offenses committed Indi- chapter appli and 1153 of this shall not be jurisdiction ans which would be within country cable within the of Indian areas tribes located in areas where P.L. 280 does (a) listed in subsection of this section as apply. which the areas over several States have important This amendment it because ’[50] jurisdiction. exclusive community recognizes that Metlakatla (c) amendment, Prior to this subsection jurisdiction prior lacked concurrent part of P.L. section section This, turn, represents amendment. a rec- provided: provisions “The of sections 1152 ognition pre-amendment jurisdic- exclusive chapter applica- of this not be shall Although tion the state. amendment ble within the areas listed jurisdiction, affected criminal the lan- (a) of this subsection section.”51 U.S.C. guage conferring P.L. of section 2 of § 1152 extends the criminal laws of the Unit- states, criminal on the and sec- ed States to Indian but does not conferring tion 4 of P.L. civil apply to offenses committed one Indian states, 2(a) pro- parallel. on the Section against is the so- another. U.S.C. “Each vides: of the States listed in the fol- Major called Crimes Act which extends the lowing table shall have of- over major criminal law United States to ... fenses the same extent such State against felonies committed one Indian offenses committed else- another in Indian Section language where within the State.” 4(a) necessary 1970 amendment was because un- is: section “Each of the States listed jurisdiction der 1 following section Metlakatla remained table shall have by Congress country P.L. But over civil action ... covered 280. causes of the same community extent that such has over wanted the Indian to have con- State other civil of action....”48 In view current with the state in causes impossible Congress of these it area. similarities is to con- therefore chose to define the (1970), H.R.Rep. reprinted 45. id. 49. No. 91-1545 4783, added). (emphasis 1970 U.S.C.C.A.N. 4786 46. Id. 25, 91-523, 1970, November Act of Pub.L. added). 15, 1953, 83-280, (emphasis Stat. August 47. Act of Pub.L. Stat. 588. 15, 83-280, 1953, August 51. Act Pub.L. Id. Stat. country 280, remaining interpreting in Alaska Supreme covered P.L. Court by P.L. and all in the “intervening” observed that Congress acts of states, except excepted five other for the “intimately jurisdictional that are related” to reservations, as “areas over which the sever- issues of Indian law should be considered: jurisdiction.”52 al States have exclusive Title intimately IV of the 1968 Act is relat language merely 4,§ provides This is more than an ed to as it the method for expression Congress’s belief that P.L. 280 assumptions jurisdic further state states; granted exclusive to the by § tion conferred and we previously it ratifies that belief. It cannot be dismissed legislation have construed the effect of af merely opinion Congress of a later fecting light reservation Indians in “in concerning meaning passed by enactments.[57] of a law tervening” legislative Congress. an Congress earlier The later question 91-523, There is no that P.L. changed original language act’s to both amendment, “intimately related” to such, reflect and' enact its belief. As P.L. 85-615, P.L. the 1958 amendment that added conjunction 280 read in with its 1970 amend- to P.L. unambiguous pur- Alaska Its adequately pre- ment more than rebuts the pose modify was to the 1958 amendment. As sumption favoring in Indi- such, particularly 1970 amendment “Congress expressly an because probative Congress’s enacting intent provided that apply.”53 State laws shall P.L. 85-615. importance The 1970 amendment’s should Contemporaneous B. Administrative merely not be dismissed as the view of a Construction subsequent Congress regarding the intent In determining meaning, an earlier one. In United States v. Philadel statute’s courts phia contemporaneous National Bank54 and South v. will defer to the Dakota construc- Yankton given by Sioux Tribe55 the tion of the agency statute an observed that “the subsequent charged views of a with its administration.58 Contem- Congress poraneity form a hazardous important basis for infer of construction is be- ring agency the intent of an earlier one.”56 personnel cause often have assisted references in formulating legislation Yankton Sioux and Philadel and are thus phia amendatory knowledgeable National Bank were not of its intent meaning.59 previous Interpretations acts of and are contempora- thus dis which contradict tinguishable present hand, from interpretations, case. More neous on the other are over, Bryan, actually a case that weight.60 focuses entitled to little 91-523, cy’s] 52. Act interpretation of November Pub.L. greater of the statute merits added). (emphasis weight Stat 1358 [agency] than normal because it was the legislation' through that drafted the and steered it Bryan, 426 U.S. at 376 n. 96 S.Ct. 2102 debate”). Congress with little See also Frontier (quoting McClanahan v. State Tax Airlines, Bd., Arizona Inc. v. Civil Aeronautics 621 F.2d Comm'n, 164, 170-71, 411 U.S. 93 S.Ct. (10th Cir.1980) (holding that the con- (1973)). L.Ed.2d 129 by agency charged struction of statute its administration is entitled to substantial defer- 54. 374 U.S. 83 S.Ct. 10 L.Ed.2d 915 courts, especially ence where the administra- (1963). practice contemporane- tive at stake involves the charged ous construction of the statute those 55. machinery responsibility setting with the its motion); Singer, 2B Norman J. Sutherland Stat- (5th 1992) utory Construction 49.04 at 11 ed. Bank, (quoting Philadelphia Id. at 803 Nat’l ("[L]egislative history in the form of information 1715). 374 U.S. at provision as to how draftsmen of a it understood meaning and that their was communicated to the 386, Bryan (empha- 426 U.S. at 96 S.Ct. 2102 Congress which enacted it has been held to be added) (citation omitted). sis greater weight subsequent entitled to than ad- (citation omitted). interpretation.”) State, ministrative 954, 58. See v. 905 P.2d 967-68 Totemoff (Alaska 1995). Gilbert, 125, 60.See General Elec. Co. v. 429 U.S. Smith, 473, 485, 142-46, 401, (1976) 59. See Howe v. 452 101 97 S.Ct. 50 L.Ed.2d 343 2468, (1981) ("the [agen- (declining agency interpretation to defer to 812 The ef elsewhere within the State. principles apply case because

These to this Interior, contempora- provision clearly is to extend Department of the of this the fect P.L. 280 and for neously passage with the of procedural laws both the substantive and thereafter, interpreted period of long time by Indi the to crimes committed State jurisdiction conferring exclusive P.L. 280 as Thus, only the State ans. law defines opinion departmental A on the states. 1954 and the against offenses the State criminal explained that P.L. conferred exclusive 280 therefor, also defines the penalties but it jurisdiction the states.61 This criminal on manner in which which and the courts interpre- departmental an earlier confirmed committing such of persons accused of jurisdiction by the conferred P.L. tation that tried.[62] are to be fenses the follow- gave 280 was exclusive and which contemporaneous interpretations of These analysis ing that conclusion: textual exclusivity published were and thus known interpretation Although there been has no it to Alas- Congress when extended P.L. 280 (Public August 15, Law of the act they addressed or ka in 1958. As were not courts, Cong.), by Federal it 280—83d the they approved by changed, presumably were act, by providing view that that is our the Report Congress.63 the 1958 The Senate the State shall have states by accompanying the 1958 amendment and committed crimes offenses country juris- P.L. civil against Indians in the Indian under 280 “criminal and that jurisdic extent the has the same that State [the within five diction over tion over crimes offenses committed mandatory to those states] was transferred State, except within as limit elsewhere the primary meaning As States.”64 2(b), made such ed Section conveyance in this context is the “transfer” the State The extent exclusive. another,65 entity from one complete State’s is full suggests agreed report that the committee jurisdiction by any permits of no such Department’s view that the state’s body save other the Federal Government jurisdiction was exclusive. agencies of the State it and subordinate Department interpret continued to explicitly act self. The also states vesting P.L. 280 as exclusive laws the same criminal shall have force previously into the I have they and effect within as the states 1970’s. Singer, longstanding gress.”). 2B Suther- previous, which contradicted inter- See also Norman J. (5th Statutory ed. following interpretation); 49.05 at 19 pretation and land Construction earlier 1992) (“If legislature portions Totemoff, has amended 905 P.2d at 967-68. statute, portion sought to but left intact construed, legislature has declared an Interior, Op. (Sept. Dep’t M-36241 Solic. No. adopt placed on the intent to construction 22, 1954), Interior, reprinted Dep’t of in II U.S. (citation agency.”) statute omitted). administrative Opinions Department of the of the Solicitor States, Bob Jones Univ. United Affairs, Relating 1917- Cf. the Interior to Indian 574, 2017, 461 U.S. 1648, ("Criminal (1979) jurisdic- at 1648 (1983) ("In prolonged view of its L.Ed.2d upon by U.S.C. 1162 tion conferred a state issue, important acute awareness of so States.”). except against exclusive the United proposed Congress’ failure act on the bills provides support added for conclud- (first emphasis n. 62. Id. at 1650 and third ing Congress acquiesced [agency’s] in the added); Op. Dep’t Solic. No. Interior M-36907 ”); rulings.... Casperson v. Alaska Teachers’ Re- (November 1978), (1978) 85 I.D. Bd., (Alaska 1983) tirement P.2d (quoting June 1954 letter from Assistant Secre- ("we legislature con- must assume was tary Morgan to Mr. E. Interior Lewis doing of what it was when it amended scious Director, Affairs, Pryse, Area Bureau of statute] but un- [a statute in left related 4, 1954)). (June Minneapolis, Minnesota changed.”). Rusk, 63. See Zemel v. (1958), reprinted S.Rep. in 1958 No. 85-1872 (1965) (in 14 L.Ed.2d "some circum- added). (emphasis U.S.C.C.A.N. stances, Congress' repeal or revise failure to interpretation [an] the face of administrative Dictionary persuasive Third 2426-27 been held to evidence that 65. Webster's New Int'l constitute interpretation is the one intended Con- Community discussed the 1970 amendment to P.L. 280.66 Metlakatla Council with local Report regarding legislative, authority The police powers House the 1970 and assumption by amendment indicates shared enforce its law over minor criminal of State.[68] Department Bruce of the concurrently Commissioner fenses with the the Interior’s Bureau of Indian Affairs and By Department changed had its Judiciary the House Committee that P.L. 280 began regard views. It P.L. 280 as a applied effectively to Alaska eliminated all grant jurisdiction of concurrent to the state.69 jurisdiction over minor offenses. In 1991 adopted the Ninth Circuit the same report originally states that Metlakatla position.70 jurisdiction had over minor criminal of I do not believe that P.L. designed 280 was federally recognized gov fenses under its to terminate Indian reservations or to elimi- However, ernment. when the act of Au authority. nate all tribal grant- Tribal gust [applying P.L. 280 to Alaska] by ed game federal law over fish and and passed giving jurisdiction was Alaska property specifically preserved trust under by against offenses Indians in all Indi sections 2 and 4 of that act. But P.L. 280 Alaska, Territory within the heyday was enacted of what one au- eliminating it had legal effect of thority has described as “the termination jurisdiction by basis for the exercised contrast, By era” of 1945-1961.71 the 1970’s community over minor offenses. As Com part law, were of a different trend missioner hearing, Bruce stated en “the period self-determination era.”72 This actment of the bill would reinvest by expanded recognition is “characterized Community Metlakatla Council with local application and powers of the of tribal self- legislative authority police powers government, by general exclusion of enforce its laws over minor criminal of reservations authority.”73 from state State.[67] concurrently fenses with the should, departmental opinion therefore, A letter Undersecretary written be seen as consistent with the trends of the Interior Russell to the Senate Committee on period during However, which it was issued. Judiciary concerning the 1970 amend- departmental the earlier opinions—those ment Department’s position clarifies the contemporaneous passage with the of P.L. the transfer of exclusive 280 and its 1958 and 1970 amendments— clearly makes it applicable to the civil as well obviously were more in tune with Con- as the criminal sections of P.L. 280: gresses which enacted and amended P.L. Since the State of Alaska has had the such, departmental opin- 280. As it is these responsibility providing for law and order deference, require ions which our not the services to Indians the departmental opinions later that contradict within its borders. The such transfer of contemporaneous interpretations of P.L. remove, to Alaska acted to 280.74 exceptions, limited the civil and criminal law and order III. Conclusion purposes previously held the Indian groups

and native explicitly the Federal Gov in 1970 described ernment This bill would country subject reinvest to state supra Lawyer 66. See Dissent Addendum Training Program, II.A. 71. American Indian Inc., Sovereign Indian Tribes as Governments 11 (1970), H.R.Rep. reprinted No. 91-1545 (1988). added). (emphasis 1970 U.S.C.C.A.N. 72. Id. at 14. added). (emphasis Id. at 4786 Interior, Op. Dep’t 69. See Solic. No. M-36907 Id. (Nov. 14, 1978), 85 I.D. 434-37 Elec., 74. See General 429 U.S. at Venetie, Village

70. Native I.R.A. Council v. 401; Totemoff, Alaska, 905 P.2d at (9th Cir.1991). 967-68. 944 F.2d 561-62 Accordingly, our decisions to the states. which the “as areas over P.L. 280 under K.E., Nenana, and F.P. were correct. jurisdiction.”75 have exclusive several 'States with the text was consistent This enactment MATTHEWS, Justice, with whom Chief long-standing contemporaneous and and the COMPTON, Justice, dissenting. joins, Department interpretation of P.L. 280 exclu Interior that the act bestowed For these jurisdiction on the states. sive

reasons, Congress intended I believe that grant of exclusive

P.L. 280 as Stat. Pub.L.

75. Act of November

Case Details

Case Name: John v. Baker

Court Name: Alaska Supreme Court

Date Published: Sep 8, 1999

Citation: 982 P.2d 738

Docket Number: S-8099

Court Abbreviation: Alaska