Alaska SCT Affirms Award in Boiler Explosion Caused by AVCP Regional Housing Authority Negligence

Here are the materials in Association of Village Council Presidents Regional Housing Authority v. Mael:

AVCP Opening Brief

Mael Opening Brief

Appellee Brief

Alaska Brief

AVCP Reply

Mael Reply

Metlakatla Fisher’s Cert Petition

Here is the petition in Scudero v. Alaska:

Questions presented:

1. Can the State of Alaska by criminal prosecution and threat of fine and incarceration prohibit Alaska Native members of the Metlakatla Indian Community and Tribe and the Tsimshian Nation, who have vested broad off-reservation, aboriginal, treaty, presidential proclamation, and congressional legislature enacted, and granted, fishing rights, from harvesting fish in their traditional Pacific Ocean fishing waters, and Annette Islands Reserve related waters, which fishing is essential to their culture, heritage, and lifestyle, and vital to the very purpose for which the Reserve was established and dedicated, under the guise of “conservation necessity” by criminally banning those natives who are “un-permitted” i.e., do not have State of Alaska “limited entry permits,” which permits are bought and sold for many tens of thousands of dollars and well beyond the financial resources and means of most natives, and which permits were issued in a restricted and “qualifying fashion” that discriminates against those Metlakatla Natives?

2. Should this Court act as the United States Supreme Court did on two (2) prior occasions in Alaska Pacific Fisheries Company v. United States, 248 U.S. 78, 39 S.Ct.40, 63 L.Ed. 138 (1918) and Metlakatla Indian Community v. Egan, 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed. 262 (1962), to protect the rights of the Tsimshian Nation members of the Metlakatla Indian Community and Tribe as to the Annette Islands Reserve, as to vested fishing rights relating to the Reserve, or allow the State of Alaska and the Alaska Supreme Court to abrogate and extinguish those aboriginal, treaty, presidential proclamation, and congressional legislation and grant rights [which abrogation involves native fishing rights that evolve from the Russian Treaty of Succession of 1867 (Alaska Acquisition Treaty) and subsequent federal legislation including the Alaska Statehood Act, (72 Stat. 339) Public Law 85-508, 85th Congress, H.R. 7999, July 7, 1958, the Alaska Native Claims Settlement Act (“ANCSA,” 43 U.S.C. § 1601 et. seq.), and violation of the duties and obligations of the State of Alaska thereunder], with devastating impacts on the Metlakatlans and their thousands of years of culture tradition and heritage under the guise of the misapplied “conservation necessity principle,” where said misapplication is discriminatory against the Tsimshian Metlakatla Tribe and natives such as John Albert Scudero, Jr. and there will be no real impact on the Alaska limited entry fishing program or the fisheries of Alaska if the natives’ vested rights are honored?

3. Can the State of Alaska by such criminal prosecution abolish those Alaska Natives’ fishing rights when allowing the small number of Metlakatlans to exercise their rights will in reality have little impact on the State of Alaska Limited Entry Fisheries Program, or salmon fisheries; although such discriminatory ban and prohibition and criminal prosecution abrogates and emasculates those vested fishing rights and destroys the basic purpose for which the Reserve was established by presidential proclamation and congressional action, as a reserve for the Alaska Natives to enjoy and practice their historical and traditional fish harvesting lifestyle, as opposed to an agrarian lifestyle which was and is not possible on the Reserve; or does the State of Alaska have to honor those vested rights of the Alaska Natives, Metlakatlans, as the Courts have held as to vested native fishing rights and allow them to fish on equal footing and par with non-native fishers, merely perhaps equally subject to true conservation regulatory measures as to “manner and means,” and “seasons” of harvest and not subject to a criminal prosecution impressed discriminatory total ban on un-permitted natives so exercising their vested fishing rights?

Lower court materials here.

Jurisdiction Case out of Alaska Supreme Court [ICWA]

sp-ord-116

These kind of cases feel like they are coming in a rapid speed right now–this is the third one I am aware of that have been/will be decided this spring. The issue is the attempted interference by foster parents in a transfer to tribal court proceeding, usually by trying to achieve party status.

Having considered the parties’ briefing — and assuming without deciding
both that J.P. and S.P. were granted intervenor-party status in the superior court and that such a grant of intervenor-party status would have been appropriate4 — we dismiss this
appeal as moot.
“If the party bringing the action would not be entitled to any relief even
if it prevails, there is no ‘case or controversy’ for us to decide,” and the action is
therefore moot.5 As explained in our order of July 9, 2021, even if we were to rule that
the superior court erred in transferring jurisdiction, we lack the authority to order the
court of the Sun’aq Tribe, a separate sovereign, to transfer jurisdiction of the child’s
proceeding back to state court.6 And we lack authority to directly review the tribal
court’s placement order.7

The Court cites my all time favorite transfer case–In re M.M. from 2007. Not only is that decision a complete endorsement of tribal jurisdiction, it also explains concurrent jurisdiction (especially useful when you are operating in a PL280 state), which is not the power to have simultaneous jurisdiction, but the power to chose between two jurisdictions.

When we speak of “concurrent jurisdiction,” we refer to a situation in which two (or perhaps more) different courts are authorized to exercise jurisdiction over the same subject matter, such that a litigant may choose to proceed in either forum.FN13 As the Minnesota Supreme Court explained in a case involving an Indian tribe, “[c]oncurrent jurisdiction describes a situation where two or more tribunals are authorized to hear and dispose of a matter *915 and the choice of which tribunal is up to the person bringing the matter to court.” (Gavle, supra, 555 N.W.2d at p. 290.) Contrary to Minor’s apparent belief, that two courts have concurrent jurisdiction does not mean that both courts may simultaneously entertain actions involving the very same subject matter and parties.

Qualified Expert Witness Case out of Alaska [ICWA]

Here

Sometimes I read the first paragraph of a decision and just put my head on my desk. Feel free to join me today:

An Alaska Native teenage minor affiliated with the Native Village of Kotzebue (Tribe) was taken into custody by the Office of Children’s Services (OCS) and placed at a residential treatment facility in Utah. She requested a placement review hearing after being injured by a facility staff member. At the time of the hearing, the minor’s mother wanted to regain custody. At the hearing the superior court had to make removal findings under the Indian Child Welfare Act (ICWA) as well as findings authorizing continued placement in a residential treatment facility under Alaska law. ICWA requires testimony from a qualified expert witness for the removal of an Indian child. At the hearing, the minor’s Utah therapist testified as a mental health professional. The minor, as well as her parents and the Tribe, objected to the witness being qualified as an ICWA expert, but the superior court allowed it. The minor argues that the superior court erred in determining that the witness was qualified as an expert for the purposes of ICWA. Because the superior court correctly determined that knowledge of the Indian child’s tribe was unnecessary in this situation when it relied on the expert’s testimony for its ICWA findings, we affirm.

 

Qualified Expert Witness Case out of Alaska Supreme Court [ICWA]

Here

I have been trying to figure out how to comment on this particular opinion, though I may just default to Alaska’s QEW holdings have always been outliers . . .

So as a reminder for us all, this is how the Minnesota Supreme Court described the purpose of the QEW:

The third clause—“including testimony of qualified expert witnesses”—further identifies what must be included as part of the court’s “beyond a reasonable doubt” determination. Id.; see also Larson v. State, 790 N.W.2d 700, 705 (Minn. 2010) (“[A] limiting phrase . . . ordinarily modifies only the noun or phrase that it immediately follows.”). The clause provides that testimony from a QEW must support the court’s serious-damage determination. But this testimony need not stand alone. The statute provides that the court’s serious-damage determination must be supported by evidence “including testimony of qualified expert witnesses.” 25 U.S.C. § 1912(f) (emphasis added). “Include” means “[t]o contain as a part of something.” Include, Black’s Law Dictionary (10th ed. 2014) (emphasis added). So long as the QEW testimony supports the district court’s serious-damage determination, section 1912(f) has been satisfied. In other words, the court may pair the required QEW testimony with other supporting evidence to make its serious-damage determination.

The Alaska Supreme Court is now interpreting the regulations to mean

. . . the primary consideration in determining whether an expert is qualified under ICWA is the expert’s ability to speak to the likelihood of harm to the child if returned to the parent’s custody; knowledge of tribal customs and standards is preferred, but such knowledge alone is insufficient. The experts in Oliver’s and Lisa’s cases, despite their extensive knowledge of tribal cultural standards, do not meet this requirement.

Therefore,

As a tribal elder and leader of his community, Encelewski is clearly qualified to testify to tribal cultural standards and childrearing norms. But nothing in the record shows he has sufficient knowledge, either through his experience on the ICWA committee or from formal training, to discuss specifically how Oliver’s conduct or the conditions in his home were likely to result in serious physical or emotional harm to the child if returned to his care. There is no evidence that the source of Encelewski’s conclusion that Oliver’s behavior would likely harm the child is based on anything other than Encelewski’s extensive life experience as a community leader and grandfather. This is insufficient to qualify him to testify about the likelihood of harm if the child is returned to Oliver. To meet the ICWA standards, Encelewski — as the sole expert testifying in support of terminating Oliver’s parental rights — must have been qualified to testify about that causal relationship; nothing in his testimony supports such a qualification.

Among other things, I believe this means that most QEW trainings for Alaska are going to need to fundamentally change to address this holding, especially for tribes using leaders or child welfare committee members as their QEWs.

Qualified Expert Witness Case from Alaska [ICWA]

Eva H. v. State of Alaska

This is a case worth reading in its entirety for the discussion of the qualifications of the QEW but also the discussion of the testimony supporting the casual connection between the parents’ behavior and the removal of the children.

This QEW had been a Guardian ad Litem in the Yukon Kuskokwim Delta region for a number of years, however:

She agreed that she had no formal education in psychology, mental health, chemical dependency, substance abuse, social work, or therapy, and she did not recall having read any scholarly literature in these areas. She acknowledged that she was unable to “diagnose mental health issues,” though she testified she could recognize them based on her experience as an attorney and a GAL. But she further admitted that she did not use “any documents or models, like professional references, in order to make those conclusions”; she relied solely on her experience as an attorney and a GAL.

Then, she

did not address causation, as framed in the regulation, by testifying about how Keith and Eva’s conduct was likely to cause “serious emotional or physical damage to” the two boys. She drew no connections between specific conduct
and the likelihood of specific harm. We have held in the past that expert testimony need not directly address every aspect of this element of a termination decision; trial courts are allowed to consider “reasonable inferences from the expert testimony, coupled with lay witness testimony and documentary evidence from the record.” But when expert testimony is required in order to support termination in ICWA cases, trial courts may rely on reasonable inferences only from the testimony of witnesses who are qualified to testify on the subject.

Alaska Supreme Court on Active Efforts [ICWA]

Here.

I very nearly made an inadvertent broken record pun here, but seriously, I do talk about making a clean record a lot. OCS didn’t even manage to document state law requirements in this case. And in the continuing theme of this afternoon’s ICWA cases–the requirements of ICWA stand regardless of whether the agency finds the parents cooperative or not.

Like the superior court, we are underwhelmed by the quality of OCS’s testimony. We agree with the court’s observation that OCS “made a rather lackadaisical effort” and “put on a skeletal case about [its] required active efforts.” The superior court was rightly concerned to doubt OCS’s demonstration of active efforts. We acknowledge that the superior court concluded that OCS met its burden due in large part to “the consideration the Court is to give to the parents’ demonstration of an unwillingness to change or participate in rehabilitative efforts.” While this principle remains valid, the parents’ lack of effort does not excuse OCS’s failure to make and demonstrate its efforts. Even considering the parents’ lack of participation, there is simply insufficient evidence in the record to show that OCS made active efforts. It was legal error for the superior court to conclude by clear and convincing evidence that OCS made active efforts to reunify the family.

***
A related but distinct problem is OCS’s failure to document its active efforts in detail in the record. While documentation is related to OCS’s duty to make active efforts, documenting those efforts is a separate responsibility. The act of documentation is not itself an “active effort”; rather, it is a mechanism for OCS and the court to ensure that active efforts have been made. Documentation is required by ICWA and is critical to compliance with ICWA’s purpose and key protections. The CINA statute also requires OCS to document its provision of family reunification support services. But such documentation is woefully missing here.

ICWA Case Out of Alaska Supreme Court

Here.

Parents appeal from a superior court’s order that the Office of Children’s Services (OCS) had satisfied the Indian Child Welfare Act’s (ICWA) requirements authorizing the removal of their daughter, an Indian child, from their custody. Because
the court relied on information that was not in evidence to make the required ICWA removal findings, we vacate the order authorizing removal.