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Key Acts and Cases for Alaska Tribal Court Jurisdiction Item Type Article Authors Fortson, Ryan Citation Fortson, Ryan. (2014). "Key Acts and Cases for Alaska Tribal Court Jurisdiction." Alaska Justice Forum 31(3–4): 12–13 (Fall 2014/Winter 2015). Publisher Justice Center, University of Alaska Anchorage Download date 01/10/2021 23:45:06 Link to Item http://hdl.handle.net/11122/6578 12 Alaska Justice Forum 31(3–4), Fall 2014/Winter 2015 Key Acts and Cases for Alaska Tribal Court Jurisdiction Ryan Fortson recognized tribe, that it had not attempted to (1998). This case addressed whether the Alaska Native Claims Settlement reassume jurisdiction under the procedures land selected by Alaska Native corporations Act (ANCSA) (1971). ANCSA resolved set out in ICWA, and that federal law granted through ANCSA constituted Indian country. the outstanding land claims of Alaska Na- Alaska exclusive jurisdiction over custody This status is important because tribes can tives through Congressional action. Prior matters involving Indian children. do things in Indian country normally as- to ANCSA, Alaska Natives held what is Native Village of Venetie I.R.A. Council sociated with sovereign governments, such known as aboriginal title to land in Alaska. v. State of Alaska, 944 F.2d 548 (9th Cir. as tax business conducted on tribal lands Through a series of United States Supreme 1991). In this case, two village councils and exercise criminal jurisdiction. Venetie Court cases dating back to 1823, aboriginal and two individuals who had adopted chil- had tried to collect taxes from the State title was held to mean that Native American dren through tribal courts sued the State and a private contractor for constructing tribes were domestic dependent nations for refusing to recognize the legal validity a school on ANCSA land to which it held that had a right to occupy lands they had of tribal court adoptions by denying the title. Relying upon a federal statute, the U.S. traditionally used but not to sell this land. adoptive parents public assistance that they Supreme Court held that there were three This doctrine was later applied by the U.S. otherwise would have been able to receive. types of Indian country: (1) reservations; Supreme Court to Alaska Natives. In the The State contended that tribal court juris- (2) dependent Indian communities; and (3) face of confusion over the exact nature of diction had been removed by a federal law Native allotments. The land in question Alaska Native rights to land, ANCSA explic- that pre-dated ICWA and which in general was not a reservation because (other than itly extinguished all claims to aboriginal title granted jurisdiction over civil matters in Metlakatla) reservations had explicitly been by Alaska Natives. In exchange, a combina- certain specifi ed states, including Alaska, extinguished by ANCSA. The land clearly tion of Alaska Native village and regional to the state governments. The court held did not fi t the legal defi nition of Native al- corporations received $962.5 million and that ICWA still allowed tribal courts to have lotment land. The Court then did a more the right to select 45.7 million acres of land. concurrent jurisdiction with state courts over detailed analysis of whether the Venetie Indian Child Welfare Act (ICWA) the types of cases covered by ICWA. In land was a dependent Indian community (1978). ICWA was passed by Congress to reaching this conclusion, the court held that and set out two criteria for this type of In- counteract a long history of Indian children tribes have inherent sovereignty—meaning dian country: the land must be federally set being taken from their homes and being that as distinct political communities, tribes aside for use by Indians as Indian land, and placed for foster care or adoption with can exercise authority over their members the land must be under federal superinten- non-Indian families. ICWA contains sev- unless this authority has been removed by dence. The Venetie land met neither of these eral provisions aimed at preserving Indian Congress. Because Congress had not re- requirements because ANCSA lands were families. It is important to note that ICWA moved this authority for Alaska tribes, and transferred to private ownership by state- only applies to foster care and termination in fact had affi rmed it through ICWA, tribal regulated corporations and could be sold by of parental rights proceedings and not to courts could grant legally binding adoptions the corporation. Thus, the land in question custody disputes between parents. ICWA that the State of Alaska must recognize. could not be considered Indian country. sets heightened evidentiary standards for re- Federally Recognized Indian Tribe John v. Baker, 982 P.2d 738 (Alaska moving Indian children from their families. List Act (1994). One of the issues left 1999). The seminal case in establishing If children are removed, there are “place- unresolved by the Venetie I.R.A. case was tribal court jurisdiction over civil matters ment preferences” that require, absent good whether Venetie and Fort Yukon, the two in Alaska, the Alaska Supreme Court in cause to the contrary, that Indian children Native villages involved in the case, had John v. Baker found that a tribe had inherent be placed with members of their extended suffi cient historical connections to recognize sovereignty to hear a custody case between family or with other Indian families. Tribes them as being inherently sovereign. The tribal members in its courts. The Court made have exclusive jurisdiction over foster history of tribal recognition in Alaska is this decision despite the fact that the tribe in placement and termination proceedings long and confusing, leading some to argue question (Northway Village) did not possess for children that reside on reservations, against the existence of Alaska Native tribes what could be classifi ed as Indian country. but even for Indian children who do not or that any tribes that may have existed were Rather, the Court determined that due to the live on a reservation, foster placement and extinguished by ANCSA. The federal legal central role that membership and regulating termination proceedings can be transferred status of Alaska tribes was clarifi ed in the domestic relationships among members to tribal court provided that the parents do early 1990s, fi rst with a list put out by the plays in exercising tribal sovereignty, juris- not object to the transfer. Federal and state Department of the Interior in 1993 recogniz- diction rested not just with land but could courts are required to recognize tribal court ing as tribes the Alaska villages specifi ed also be derived from a tribe’s existence as a decisions. Moreover, if a foster placement in ANCSA, and then the next year with federally-recognized sovereign with powers or termination proceeding does take place the Federally Recognized Indian Tribe List over its tribal members. “Indian tribes are in state court, the Indian child’s tribe must Act. Initially 226 tribes were recognized, unique aggregations possessing attributes be allowed to intervene in the proceeding. but subsequent amendments have raised of sovereignty over both their members Native Village of Nenana v. State of this to 230 federally recognized tribes in and their territory. Tribes not only enjoy Alaska, 722 P.2d 219 (Alaska 1986). A Alaska. Other than with one exception (the the authority to exercise control within the tribe sought in Alaska state court to trans- exception being the Metlakatla reservation boundaries of their lands, but they also pos- fer to tribal court a petition to declare an on Annette Island in far Southeast Alaska), sess the inherent power of regulating their Indian child to be in need of foster care these tribes lack reservation land following internal and social relations.” services. The State fought the transfer and the passage of ANCSA. The Court noted that because of the lack prevailed, with the Court holding that the State of Alaska v. Native Village of of territorial-based jurisdiction, tribal courts Native Village of Nenana was not a federally Venetie Tribal Government, 522 U.S. 520 in Alaska do not have exclusive jurisdiction Alaska Justice Forum 31(3–4), Fall 2014/Winter 2015 13 over custody cases and instead have concur- federal court further noted that jurisdiction Alaska Supreme Court held that because Mr. rent jurisdiction, meaning that such cases was based upon tribal membership of the child Parks failed to appeal the tribal court decision could be started in either tribal or state court. and not that of the parents. This decision was within the Minto tribal court system, he could But when a tribal court does issue a custody affi rmed by the Ninth Circuit Court of Ap- not bring his case in the State of Alaska court order, a state court should generally-speaking peals, which reiterated, citing Native Village system. Tribal court decisions are due the give recognition and legal effect to that deci- of Venetie I.R.A. Council, that “[r]eservation same respect in this regard as would be deci- sion, a principle known as comity. The state status is not a requirement of jurisdiction”. sions from other states. The Supreme Court court is required to conduct a due process State of Alaska v. Native Village of Ta- rejected Mr. Parks’ argument that an appeal analysis to ensure that the due process rights nana, 249 P.3d 734 (Alaska 2011). This case would have been futile, since the Minto Tribal of the litigants in the tribal courts were pro- can be thought of as the state court equivalent Court did have an appeals process, including tected. As part of its due process analysis, the of Kaltag Tribal Council.

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