(Cite as: 1986 WL 81076 (Alaska A.G.))
Office of the Attorney General
State of Alaska
*1 File No. 663-86-0248
April 16, 1986
State recognition of Native council adoption orders
Honorable John Pugh
Department of Health & Social Services
You have requested our advice on the question of state recognition of an adoption decree from the village council of an Alaskan Native village. Specifically, the Bureau of Vital Statistics has received a request on behalf of the village of Allakaket for a substitute birth certificate for an infant for whom the village council has issued an adoption decree. The Bureau ordinarily issues substitute birth certificates upon proof of a valid adoption through an Alaskan court or the courts of another state. The question here is whether an adoption order from a Native council in an off-reservation Alaskan community should be given the same deference as an adoption order from the courts of another state.
25 U.S.C. § 1911(d), which is part of the federal Indian Child Welfare Act (ICWA), requires each state to give full faith and credit to the "public acts, records, and judicial proceedings" of Indian tribes regarding Indian child custody proceedings, to the same extent that it gives full faith and credit to other entities. We interpret this provision as requiring the state to recognize and give effect to adoption decrees (adoptions are "child custody proceedings" under ICWA) from validly constituted tribal courts to the same extent that it would with child custody decrees from other states.
The question then becomes, to what extent does Alaska give full faith and credit to child custody decrees from other states? The "full faith and credit" doctrine derives from article IV, section 1, of the United States Constitution. Its application in child custody proceedings has never been clear. [FN1] The Alaska Supreme Court has taken the position that the courts will disregard full faith and credit and abandon the principle of comity with other states when a child's welfare so dictates. Layman v. DeHart, 536 P.2d 789 (Alaska 1975); Wilsonoff v. Wilsonoff, 514 P.2d 1264, 1267 Alaska 1973); Restatement (Second) of Conflict of Laws § 79 (1971). The United States Supreme Court has ruled that when a judgment in one state is sought to be enforced in another state, the second state may legitimately inquire into whether the first state had jurisdiction in the original proceeding. Adam v. Saenger, 303 U.S. 59, 62 (1938). In short, although decrees and judgments from other states will ordinarily be given effect in Alaska, it is still proper to question the jurisdiction of the other state's courts and, in child custody cases, to reexamine whether the child's welfare would be harmed by the foreign decree.
We do not mean to suggest that the Bureau of Vital Statistics should make independent inquiry regarding a child's welfare. Foreign decrees are presumed to be valid until a challenge is made to their validity. However, when there is reason to question the jurisdiction of an entity purporting to issue child custody orders, the Bureau may properly decline to give them effect until the legal uncertainties are resolved.
*2 In this case, where the Allakaket Village Council has purported to issue an adoption order, there is substantial reason to question that council's legal jurisdiction. Native councils on reservations have authority over tribal adoptions, and their decrees are generally entitled to be respected by states. But Allakaket is not on a reservation. However, the Indian Child Welfare Act does permit off-reservation Alaska Native villages to exercise a broad range of child welfare powers. But the Act contains a significant restriction: In our opinion, under § 108 of the Act, 25 U.S.C. § 1918, Alaska Native villages may assume jurisdiction over Indian child custody proceedings only after approval by the Secretary of the Interior of a petition from the village with a suitable plan for exercising that jurisdiction. Allakaket has not received this approval but has simply started issuing decrees, on the theory that it has inherent authority to do so. This issue is already in litigation regarding other villages. At this point the situation may be described as follows: The jurisdiction of the council to issue adoption decrees is legally disputed and a substantial question will continue to exist until the courts or Congress clarifies the law.
As noted above, the state is not obligated to give full faith and credit to decrees from another entity when that entity's jurisdiction is in doubt. Thus, the Bureau of Vital Statistics is not obligated to issue a substitute birth certificate pursuant to a decree from the Allakaket Village Council, at least as long as the council's jurisdiction is in as much legal doubt as it is today. Of course, if the legal doubts are resolved in favor of the council in the future, it would then be proper to recognize the council's decrees. If the Bureau receives similar requests in the future, we will be happy to give advice on the status of legal conflicts regarding Native village jurisdiction.
Finally, we note that counsel for Allakaket may have made this request solely for the purpose of attempting to arrange indirect evidence of state recognition of village jurisdiction. If that was the case, it would be an improper use of the Bureau, and we suggest that whenever any of your offices believes this may be happening in the future, it seek our advice on the situation.
*1 Harold M. Brown
Douglas K. Mertz
Assistant Attorney General
Department of Law
[FN1]. See the United States Supreme Court cases listed in DeHart v. Layman, 536 P.2d 789, 791 n. 4 (Alaska 1975).
1986 Alaska Op. Atty. Gen. (Inf.) 315, 1986 WL 81076 (Alaska A.G.)