Here is the opinion in Philip J. v. State of Alaska.
Alaska Supreme Court Decides ICWA Active Efforts Appeal
Here is the opinion in Philip J. v. State of Alaska.
Alaska Supreme Court
Alaska SCT Decision on ICWA Placement Preferences
Here is the opinion.
An excerpt:
This appeal requires us to reexamine policies that underlie ICWA. Though we have previously held that the preponderance of the evidence standard set forth in Adoption Rule 11 applies, upon closer review we conclude that ICWA implicitly mandates that good cause to deviate from ICWA’s adoptive placement preferences be proved by clear and convincing evidence. To the extent our prior cases hold otherwise, they are overruled. We therefore vacate the superior court’s decision and remand for further proceedings in which the superior court shall apply the clear and convincing standard of proof to the good cause determination. We do not reach all the issues raised on appeal because we are remanding, but we address some of the tribe’s arguments regarding the good cause determination to provide guidance to the superior court and the parties on remand. We also clarify the analysis necessary when a party challenges the suitability of a preferred placement.
Alaska SCT Affirms Local Taxation of Alaska Native’s Home Built/Financed with BIA Funds
Here is the opinion in Williams v. Ketchikan Gateway Borough.
An excerpt:
Fredrick Williams appeals the superior court’s decision affirming the Ketchikan Gateway Borough’s ruling that the house at 511 Stedman Street is not exempt from Ketchikan Gateway Borough taxation. In March 2002 Williams received a grant to rebuild his house from the Bureau of Indian Affairs Housing Improvement Program. Under the grant, Williams would have been required to repay the full amount of the grant if he had transferred the house within ten years of ownership. Because Williams has owned the home for ten years, the repayment amount will annually decrease by ten percent of the original amount, resulting in no repayment for a transfer occurring 20 years or more after Williams received the grant. Williams executed a deed of trust securing the federal government’s right to repayment under the grant with the Stedman Street property. Williams claims that under the grant and the deed of trust, “[t]he federal government owns … the $115,000 it took to build the home,” and that Williams was therefore exempt from paying property taxes on it. On appeal, the superior court heard this argument and rejected it, upholding the Ketchikan Gateway Borough’s view that the deed of trust securing the grant did not divest Williams, the record owner, of the ownership interest in his real property. Because we agree with the superior court that substantial evidence supports the Ketchikan Gateway Borough’s factual determinations and that the Borough’s decision was correct as a matter of law, we AFFIRM the superior court and adopt its decision, which is attached as an appendix.
Alaska Supreme Court Decides Attorney Fee Dispute in Long-Running Land Claims Matter
Here is the opinion in Leisnoi, Inc. v. Merdes & Merdes, P.C.
An excerpt:
Leisnoi, Inc., an Alaska Native corporation, retained the law firm of Merdes & Merdes to represent it in litigation against Omar Stratman over its certification of and title to certain lands Leisnoi claimed under the Alaska Native Claims Settlement Act. Leisnoi and Merdes entered a contingency fee agreement under which, if Leisnoi was successful in the litigation, Merdes would receive an interest in the lands Leisnoi obtained or retained. The Stratman case was resolved in 1992 in favor of Leisnoi, although Stratman appealed and the related litigation continued for another decade. Leisnoi challenged the validity of the fee agreement with Merdes. A bar-appointed Arbitration Panel determined that Merdes was not entitled to an interest in the land itself, but was entitled to payment equal to a percentage of the adjusted value of Leisnoi’s property, plus interest. In 1995, upon Merdes’s motion, Superior Court Judge Brian C. Shortell confirmed the fee award and entered judgment against Leisnoi. For several years, Leisnoi made payments pursuant to the schedule laid out by the Arbitration Panel. In September 2002, Leisnoi ceased making payments and the judgment went into default. Leisnoi and Merdes subsequently attempted to negotiate a settlement; Merdes did not pursue execution during this period.
In October 2008, the Stratman litigation finally concluded in Leisnoi’s favor. The following year, Merdes moved the superior court to issue a writ of execution. Leisnoi opposed the motion on the grounds that Merdes had not shown just and sufficient cause for failing to seek a writ of execution within five years of entry of the 1995 judgment. Leisnoi subsequently moved for relief from the 1995 judgment under Alaska Civil Rule 60(b), arguing among other things that the judgment was void under 43 U.S.C. § 1621(a)’s restrictions on contingency fee contracts involving Alaska Native Claims Settlement Act lands. In January 2010, Superior Court Judge Sen K. Tan issued an order denying Leisnoi’s Rule 60(b) motion and granting Merdes’s motion to execute. Six months later, Leisnoi paid Merdes the remaining balance. Leisnoi now appeals the superior court’s ruling.
This case presents a number of complex issues involving questions of waiver and whether the superior court’s 1995 judgment was void or voidable. We conclude that Leisnoi did not waive its right to appeal by paying Merdes the balance due on the judgment. We conclude that the Arbitration Panel’s fee award and the superior court’s 1995 entry of judgment violated 43 U.S.C. § 1621(a)’s prohibition against attorney contingency fee contracts based on the value of Native lands that were subject to the Act. We conclude that the superior court’s 2010 order granting Merdes’s motion to execute on the 1995 judgment separately violated the Act’s prohibition against executing on judgments arising from prohibited attorney contingency fee contracts, and that order is reversed. We conclude that, notwithstanding the illegality of the Arbitration Panel fee award and the 1995 judgment, Leisnoi is not entitled to relief pursuant to Civil Rule 60(b): We conclude that the 1995 order was voidable rather than void for purposes of Civil Rule 60(b), and therefore not subject to attack under Civil Rule 60(b)(4); we also conclude that Leisnoi is not entitled to relief under Civil Rule 60(b)(5) or 60(b)(6). Accordingly, Merdes must return Leisnoi’s payment of the $643,760 balance on the judgment, with interest, but Leisnoi is not entitled to recover payments made prior to the issuance of the writ of execution. Merdes may file an action for any fees it believes it is entitled to under a theory of quantum meruit.
H/T Legal Profession Blog and T.W.
Split Alaska SCT Decides ICWA Active Efforts/Parental Rights Termination Case
Here is the opinion in Thea G. v. State, Dept. of Health & Social Services, Office of Children’s Services.
The affected tribe is Native Village of Kotzebue.
Alaska SCT Orders State to Reconsider Hunting/Fishing Ruling for Chitina Subdistrict
Here is the opinion in The Alaska Fish & Wildlife Conservation Fund v. State, Dept. of Fish & Game, Board of Fisheries.
An excerpt:
In 1999, the Board of Fisheries (the Board) made a positive customary and traditional use finding in the Chitina subdistrict for the first time, thereby changing it from a “personal use” to a “subsistence” fishery. The Board reversed this decision in 2003, returning Chitina to a personal use fishery. The Alaska Fish and Wildlife Conservation Fund (AFWCF) and the Chitina Dipnetters Association, Inc., after asking the Board to reconsider its 2003 finding in both 2005 and 2008,1 brought this suit to challenge the Board’s negative customary and traditional use finding for Chitina. They claimed that the regulation used by the Board to make such a finding, 5 Alaska Administrative Code (AAC) 99.010(b), was unconstitutional on its face and as applied. The superior court held that the regulation was valid and constitutional, but remanded for the Board to fully articulate the standard being used in its application of 5 AAC 99.010(b)(8). It also instructed the Board not to consider “the per capita consumption of wild food in the home community of various users” upon remand. On remand, the Board codified a definition of “subsistence way of life,” allowed the parties to submit evidence, and upheld its previous classification. Because 5 AAC 99.010(b) is consistent with its authorizing statutes, is reasonable and not arbitrary, does not violate the Alaska Constitution’s equal access provisions, and was constitutionally applied when the Board made its customary and traditional use finding for the Chitina fishery in 2003, we affirm this portion of the superior court’s rulings. Because there is no indication that the Board actually relied on the per capita consumption of wild foods in the users’ home communities when applying 5 AAC 99.010(b) and because that information may be relevant to the subsistence inquiry, we reverse this ruling by the superior court.
Sharply Split Alaska SCT Decides ICWA Active Efforts Case
Active efforts determinations are difficult in light of the terrible fact patterns judges see in these cases. We should expect to see many more of these cases in many states, especially Alaska, where there appears to be divergent views.
Alaska SCT Remands Redistricting as Too Deferential to VRA and Native Vote
McCrary v. Ivanof Bay Village: Cert Petition Challening Alaska Native Immunity
Here is the petition:
Question presented:
Whether the Alaska Supreme Court correctly held that Congress intended the Federally Recognized Indian Tribe List Act to delegate the Secretary of the Interior authority to create more than 200 “federally recognized tribes” in Alaska by publishing a list of Native Entities in the Federal Register.
Alaska SCT Remands Alaska Native Village Challenge to Bristol Bay Plan
Here.
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