Alaska SCT Recognizes Inherent Authority of Tribal Court to Enforce Child Support Orders Against Non-Member Parents

From Justice Fabe’s opinion:

This case, in contrast, requires that we decide whether tribal courts’ inherent, non-territorial subject matter jurisdiction does in fact extend to the adjudication of the child support rights and obligations of nonmember parents of children who are members or eligible for membership. We hold that because tribes’ inherent authority over child support stems from their power over family law matters concerning the welfare of Indian children — an area of law that is integral to tribal self-governance — the basis and limits of that authority are tied to the child rather than the parent.

Two Justices joined in a separate concurring opinion, which reads more like a dissent:

Today the court affirms those legal rulings and the associated injunctive relief, and I join that part of its decision. But the court unnecessarily moves further and reaches out to provide an advisory opinion on yet another legal issue: whether a tribal court with non-territorial based inherent sovereign authority to adjudicate matters involving tribal children necessarily has adjudicatory authority (subject to some unstated personal jurisdiction limitations) over non-tribal-member parents. This issue is not necessary to the decision before us, there is no specific controversy in this case necessitating a decision on the issue, there is no party in this case truly advocating for the interests of non-member parents on the issue, and neither the Tribe nor the United States considered the issue worthy of significant briefing; I therefore do not join the court’s advisory opinion.

Opinion is here.

Briefs here.

Federal Subsistence Board Restores Saxman Tribe’s Subsistence Rights

Big announcement today out of Alaska:  The Federal Subsistence Board (FSB), the body charged with managing subsistence hunting and fishing on Alaska’s public lands and waters, restored the Organized Village of Saxman to “rural community status,” thereby making members once again eligible for priority harvest of fish and game.

The Alaska National Interest Lands Conservation Act (ANILCA) grants a harvest priority of fish and game on public lands, but this priority is only extended to “rural communities.”  In 2006, under political pressure from the State, the FSB terminated Saxman’s rural status and grouped the village in with the city of Ketchikan.  Represented by NARF, Saxman later filed suit to restore its rural status, but parties settled the case in favor of today’s administrative fix.

Saxman final rule.

Saxman IRA Press Release.

NARF Complaint for Declaratory and Injunctive Relief.

Unpublished Decision from Alaska Declining to Apply 2015 ICWA Guidelines Provision on Expert Witnesses

Here.

Even before the holding, the Court brushes aside some pretty disturbing facts, including:

OCS noted that Casey might be affiliated with the Asa’carsamiut Tribe and that the children were believed to be Indian children affiliated with the Tribe. . . . In September the Tribe attempted to intervene. Because the Tribe’s documents were ambiguous about Casey’s tribal membership and the Tribe did not respond to the trial court’s request for clarification, in November the trial court denied the intervention motion without prejudice. At about the same time the trial court granted OCS’s motion to remove the children from Kent’s home.

In August 2013 OCS petitioned to terminate Kent’s and Casey’s parental rights, stating that the children were “not believed to be Indian children” and setting out the grounds for termination.  In its order terminating Kent’s parental rights, the trial court first stated that it had made findings at various stages of the case that the children were not Indian children under ICWA, that no party had presented contrary information at trial or asked the court to reconsider its earlier rulings, and that the children were not Indian children under ICWA.

On the Expert Witness issue:

When determining whether a witness satisfies ICWA’s “qualified expert witness” requirement, we have considered the Bureau of Indian Affairs(BIA) Guidelines for State Courts; Indian Child Custody Proceedings (1979 BIA Guidelines). . . . In February 2015 — after the termination trial in this case but before the remand — the BIA adopted Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (2015 BIA Guidelines) to “supersede and replace the guidelines published in 1979.” Less than a month later the BIA published proposed new ICWA regulations to “complement [the] recently published Guidelines for State Courts and Agencies in Indian Child Custody Proceedings.” The proposed regulations have not yet been adopted.

OCS argues that “because the BIA is in the process of adopting ICWA regulations whose final content is unknown, it would be premature for this court to consider overturning Alaska law on ICWA experts before knowing what the BIA’s final word on qualified experts is.” We agree. Final regulations have not yet been adopted and we thus cannot determine whether they will include such a requirement in the future. We decline to overrule our longstanding precedent based on the possibility that BIA regulations will require a different result in the future.

Alaska SCT Holds Yupik Parent’s Choice to Live Subsistence Way of Life Constituted “Voluntarily and Unreasonable” Unemployment Under State Child Support Law

Opinion in re Sharpe v. Sharpe (Alaska Jan. 8 2016)

In a 3-2 decision, Alaska’s Supreme Court has affirmed a lower court’s decision denying a motion for modification of child support to an Yup’ik Eskimo who the court believed was unreasonably unemployed when she quit her $120k job in Anchorage for a traditional way of life as a stay-at-home mom in the Native village of Stebbins Community Association.

Excerpt from Justice Bolger’s majority opinion:

Despite this consideration, the dissent worries that the superior court “trivialize[s] Alaska Natives’ way of life”60 and “devalues Alaska Natives’ cultural, spiritual, and religious connections to their villages and their subsistence lifestyle.”61 Yet in reality the dissent’s desired outcome would have enormous financial implications for Alaska Native children. “The primary purpose of Rule 90.3 is to ensure that child support orders are adequate to meet the needs of children, subject to the ability of parents to pay.”62 Granting either parent absolute freedom to exit the workforce would undermine this purpose.

Relevant excerpt from Justice Winfree’s dissent:

The fundamental flaw in the superior court’s analysis is its conflation of the legitimacy of Jolene’s move with the reasonableness of her unemployment in Stebbins and the manner in which the court imputed income to Jolene: “[T]he choice that I’m presented with is between treating [Jolene] as having zero income or . . . having imputed to her the income that she had at Alyeska . . . .” This was a false choice. The questions that should have been posed and answered at the hearing were: (1) whether Jolene’s move to Stebbins was for legitimate reasons; (2) whether Jolene was in fact unreasonably unemployed in Stebbins; and if so, (3) what level of income should have been imputed to Jolene based on her work history, her qualifications, and her job opportunities in Stebbins. 36

The court found that Jolene’s decision to leave her employment in Anchorage and relocate to Stebbins to reconnect with her cultural roots was unreasonable because Jolene had not “established that her situation in Anchorage was destructive or adverse to her” given that there was no evidence “that she suffered from mental illness or from some sort of emotional state or psychological state that she needed to leave the urban setting, that she needed medically or psychologically or spiritually to leave Anchorage.” But we never have required relocating parents to show that their prior locations were destructive to them or that they suffered from psychological conditions or mental illnesses to justify their relocation. Moreover the court’s statements are at odds with its earlier custody decisions favoring Jyzyk based on Jolene’s alcohol issues and with the evidence that Jolene’s alcohol issues began shortly after she started working for Alyeska.37 To the extent the court today silently approves the superior court’s reliance on “no destructive situation” and “no mental illness” factors to decide that a relocation is not legitimate, I strongly disagree.

In my view, even without considering Jolene’s express Free Exercise claim raised on appeal, her relocation to Stebbins was legitimate — to the extent the superior court made a factual finding that Jolene’s move to Stebbins was not legitimate, that finding is clearly erroneous. No evidence in the record suggests that Jolene’s relocation to Stebbins was for the purpose of decreasing her child support obligation. The court told Jolene it had “heard [her] testimony and . . . [did not] question . . . [her] sincerity and . . . the value [she] place[d] in reconnecting with [her] . . . cultural . . . roots . . . .” The court also found that both Jolene and her daughter derived some benefit from Jolene’s move to Stebbins, and Jyzyk agreed that Jolene benefitted to some extent from the move.