Supreme Court of Alaska.
the Matter of the ADOPTION OF ERIN G., A Minor
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Richard D. Savell, Judge.
Kenneth C. Kirk, Kenneth Kirk & Associates, Anchorage, for Appellant
Daniel L. Callahan, Callahan Law Office, Fairbanks, for Appellees Christopher
Grant and Doris Grant.
Before: BRYNER, Chief Justice, MATTHEWS, EASTAUGH, FABE, and CARPENETI,
*1 David L. is the putative father of Erin G. Invoking
the Indian Child Welfare Act (ICWA), he sought to set
aside the decree granting the petition of Christopher and Doris
Grant to adopt Erin. The superior court held that AS
25.23.140(b), Alaska's one-year statute of limitations for challenging adoption decrees,
barred David's petition. He appeals. Because it appears that Congress
intended that state statutes of limitations would generally apply to
ICWA challenges to placement decrees, we affirm.
FACTS AND PROCEEDINGS
Erin G. was born in 2001 to Joanne A., who
was unmarried and ill with terminal cancer. [FN1] Erin is an Indian child within the meaning of
the Indian Child Welfare Act (ICWA). [FN2] Before her death, Joanne sought to permanently place Erin
with appellees Christopher and Doris Grant. The Grants petitioned to
adopt Erin in late January 2002. In February Joanne consented
to termination of her parental rights. She also identified appellant
David L. as the father. [FN3]
We use pseudonyms for all family members and the adoptive
Indian Child Welfare Act §
4, 25 U.S.C. §
Although Joanne at first refused to identify David, she indicated
that the father was currently incarcerated for a certain well-publicized
crime. She also mentioned his last name. The superior court
indicated its intent to take judicial notice of the fact
that David was the person identified by Joanne.
The Grants' attorney formally notified David of the adoption petition,
and filed a copy of the notice with the superior
court, in March 2002. David obtained court-appointed counsel and, through
counsel, objected to the proposed adoption.
The Grants moved for summary judgment against David, arguing that
David's consent to the adoption was not necessary under either
state law or ICWA because David had not properly acknowledged
paternity of Erin. In opposing the Grants' motion, David submitted
several signed but unsworn statements in which he appeared to
assert that he was Erin's father.
On August 12, 2002 the superior court granted summary judgment
to the Grants. It
ruled that because David had not produced a sworn statement
acknowledging paternity or the results of a blood test, he
was not a "parent" as defined by state law or
ICWA, and therefore could not object to the adoption.
On September 4, 2002 the court entered the adoption decree
and the Grants assumed legal custody of Erin. Meanwhile, David
appealed the grant of summary judgment against him. He was
dissatisfied with his court-appointed attorney and requested a new attorney
for the appeal. The superior court granted his request, but
the new attorney did not pursue David's appeal, and on
April 21, 2003 we dismissed that appeal under Alaska Appellate
Rule 511.5 for lack of prosecution. David continued to file
motions and write letters to the superior court regarding his
case. In late January 2004 the superior court appointed a
third attorney, Kenneth Kirk, to represent David regarding "any further
post decree motions or appeals in this matter." In March
2004 we denied Attorney Kirk's motion to reinstate David's appeal.
David continued filing pro se motions with the superior court
throughout the remainder of 2004. On October 21, 2004 David
filed a "Petition to Invalidate Adoption," one of the motions
at issue in this appeal. His petition claimed that the
Grants' adoption of Erin violated various provisions of ICWA. On
December 7, 2004 the superior court summarily denied David's petition.
David then filed a "Motion Pursuant to Petition to Invalidate
Illegal Adoption" in which he again requested the invalidation of
the adoption and also sought a grand
jury indictment of the Grants for kidnapping. On March 1,
2005 the superior court issued an opinion thoroughly addressing and
rejecting all of David's arguments regarding the adoption.
*2 In a letter of March 9 David asked the superior
court to appoint him an attorney to appeal the court's
decision. The court apparently took no action on this request
because David submitted a second request on April 15. On
April 27 the superior court "reappointed" Attorney Kirk, who then
filed a notice of appeal in this court and a
motion to accept late filing on May 9. The Grants
and the Guardian ad Litem both opposed that motion. This
court, by order of an individual justice, granted the motion
to accept the late filing.
Standard of Review
We apply our independent judgment to resolve questions of statutory
interpretation, adopting the rule of law that is most persuasive
in light of precedent, reason, and policy. [FN4] We liberally construe statutes enacted for the benefit of
Indians, resolving "all doubts ... in favor of the Indians." [FN5]
v. Dupier, 118 P.3d 1039, 1044 (Alaska 2005).
re L.A.M., 727 P.2d 1057, 1060 (Alaska 1986).
David's Failure To Comply with the Deadline for Filing Appeals
The Grants argue that David's appeal was untimely. [FN6] They note that the superior court distributed its final
order on March 3, 2005, but that David did not
file his notice of appeal until May 9, 2005. Alaska
Appellate Rule 218(d) requires that a notice of appeal in
this class of cases be filed within fifteen days after
the date shown on the clerk's certificate of distribution of
the order or judgment. But the time limit for filing
a notice of appeal is not jurisdictional and the rule
may be relaxed or dispensed with "to avoid surprise or
The fact that the Grants unsuccessfully opposed David's individual-justice motion
to accept the late-filed appeal does not preclude them from
again raising the issue of timeliness in their briefing. See
Radich v. Fairbanks Builders, Inc., 399 P.2d 215, 217 (Alaska 1965).
Structural Steel Co., Div. of Isaacson Corp v. Armco Steel
Corp., 640 P.2d 812, 815 n. 8 (Alaska 1982); see
also Radich, 399 P.2d at 217.
Although David's appeal was late, the record indicates that he
made a good-faith
effort to appeal by the deadline. His March 9, 2005
letter to the superior court indicated his desire to appeal
and asked the court to appoint him counsel. He wrote
the court again on April 15, expressing worry that his
time to appeal would expire if the court did not
act on his request. We have held that "pro se
litigants who make good faith efforts to comply with court
rules should not be held to strict procedural requirements." [FN8] David may technically have been represented by Kenneth Kirk
during this period, but neither David nor Kirk believed Kirk's
representation was ongoing. [FN9] Once Kirk was "reappointed" as David's attorney, he filed
this appeal within twelve days.
v. Bledsoe, 978 P.2d 1264, 1270 (Alaska 1999).
Kirk stopped working on David's case when we denied David's
motion for reconsideration in 2004. David continued filing motions from
prison, apparently without copying Kirk with those motions. Nor did
the Grants serve Kirk with their response to David's motions.
It is therefore understandable that Kirk believed that his representation
of David had ended.
Because of David's good-faith attempt to file his appeal within
the time limit and
confusion about whether Kirk was still his appointed counsel in
March 2005, David's failure to comply with the time limits
in Appellate Rule 218(d) is excused.
Alaska's One-Year Statute of Limitations on Adoption Challenges Bars David's
Per AS 25.23.140(b), a challenge to an adoption decree must
be filed within one year after the decree is issued. [FN10] The superior court held that this one-year limitation barred
David's petition to invalidate the adoption decree. David argues that
state statutes of limitations should not apply to adoption challenges
brought under ICWA, a federal statute.
AS 25.23.140(b) states:
to the disposition of an appeal, upon the expiration of
one year after an adoption decree is issued, the decree
may not be questioned by any person including the petitioner,
in any manner upon any ground, including fraud, misrepresentation, failure
to give any required notice, or lack of jurisdiction of
the parties or of the subject matter, unless, in the
case of the adoption of a minor the petitioner has
not taken custody of the minor, or, in the case
of the adoption of an adult, the adult had no
knowledge of the decree within the one-year period.
*3 Section 1914 of ICWA allows "any parent or Indian custodian
from whose custody [an Indian] child was removed" to "petition
any court of competent jurisdiction to invalidate such action upon
a showing that such action violated any provision of sections
1911, 1912 and 1913 of this title." [FN11] ICWA does not contain a generally applicable statute of
limitations and §
1914 contains no time limits. [FN12] David maintains that because ICWA contains no general statute
of limitations, challenges may be brought under §
1914 at any time.
Indian Child Welfare Act §
104, 25 U.S.C. §
1914 (2000). Section 1911 of ICWA establishes the jurisdictional rights
of Indian tribes, including the right to exclusive jurisdiction over
Indian children residing within a reservation and the right to
intervene in other proceedings. Section 1912 provides parents and Indian
custodians with certain procedural rights, including the right to notice,
counsel, and discovery. It also sets standards for termination of
parental rights. Section 1913 sets out the requirements for a
voluntary relinquishment of parental rights. David claimed violations of portions
of all three of these provisions.
As discussed below, ICWA does impose a minimum limitations period
of two years for actions challenging, on grounds of fraud
or duress, the voluntary relinquishment of parental rights. 25 U.S.C.
1913(d). David does not rely on this provision.
re Adoption of T.N.F. does not have stare decisis effect.
We have previously considered whether AS 25.23.140(b), Alaska's one-year limitation
on adoption challenges, applies to claims brought under §
1914 of ICWA. In In
re Adoption of T.N.F., two of the four participating justices agreed that Alaska's one-year
statute of limitations applied, [FN13] one justice concurred in the result without discussing the
merits of the statute of limitations question, [FN14] and one justice dissented, arguing that §
1914 allows at least some ICWA claims to be brought
at any time. [FN15]
re Adoption of T.N.F., 781 P.2d 973, 981 (Alaska 1989).
FN14. Id. at 982-84 (Compton, J., concurring).
FN15. Id. at 984-85 (Rabinowitz, J., dissenting).
The parties here dispute T.N.F.'s stare decisis effect. "Stare decisis compels us to give precedential
value to our prior holdings." [FN16] David argues
that because T.N.F. lacks a majority opinion it should not be given any
stare decisis effect. The Grants counter that the plurality's opinion
should be given stare decisis effect because a majority of
participating justices agreed with the result.
v. State, 26 P.3d 459, 468 (Alaska 2001); see
also Thomas v. Anchorage Equal Rights Comm'n, 102 P.3d 937, 943 (Alaska 2004) (holding that the court
will not overrule previous holding entitled to stare decisis effect
unless " 'clearly convinced that the rule was originally erroneous
or is no longer sound because of changed conditions, and
that more good than harm would result from a departure
from precedent' " (quoting State
Commercial Fisheries Entry Comm'n v. Carlson, 65 P.3d 851, 859 (Alaska 2003))).
We agree with David's conclusion that T.N.F. does not have stare decisis effect. A majority of the
participating justices did not agree on a rationale for deciding T.N.F. Generally, "[i]f a majority of the court agreed on a
decision in the case, but less than a majority could
agree on the reasoning for that decision, the decision has
no stare decisis effect." [FN17] In some cases, a holding can be extracted from
an opinion without a majority opinion. The United States Supreme
Court has held that "[w]hen a fragmented court decides
a case and no single rationale explaining the result enjoys
the assent of five Justices, the holding of the court
may be viewed as that position taken by those Members
who concurred in the judgment on the narrowest grounds." [FN18] But one federal court has noted that this principle
is inapplicable if there is no obvious "narrower" opinion or
"common denominator of the Court's reasoning." [FN19]
v. Kentucky, 47 S.W.3d 333, 335 (Ky.2001) (quoting 20 AM.JUR. 2d Courts
159 (1995)); see
also Negri v. Slotkin, 244 N.W.2d 98, 100 (Mich.1976) ("Plurality decisions in which no
majority of the justices participating agree as to the reasoning
are not an authoritative interpretation binding on this Court under
the doctrine of Stare decisis.").
v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted); see
also Cowles v. State, 23 P.3d 1168, 1178 n. 28 (Alaska 2001) (Fabe, J.,
dissenting) (noting Marks's "narrowest ground" principle).
Energy Corp. v. Consolidation Coal Co., 177 F.3d 161, 169-70 (3d Cir.1999).
T.N.F. contains no "narrower" reasoning agreed upon by all three affirming
justices. The concurring justice expressed no opinion on the statute
of limitations issue, and in agreeing with the result, he
reasoned that ICWA did not give the plaintiff standing to
sue. [FN20] The two-justice plurality specifically disagreed with the concurring justice
on the standing issue. [FN21] Because a majority of the participating justices in T.N.F. did not agree on any one ground for affirmance, we
do not accord T.N.F
. stare decisis effect. [FN22]
FN20. T.N.F., 781 P.2d at 982-84 (Compton, J., concurring).
FN21. Id. at 975-78.
The Grants also suggest that David waived his argument that T.N.F. lacked precedential force because he failed to raise it with
the superior court in his reply to the Grants' opposition
to his petition to invalidate the decree. It is true
that David failed to respond to the Grants' argument that T.N.F.'s holding barred his case. But "[w]e will consider arguments not
raised explicitly in the trial court ... if the issue
is 1) n ot dependent on any new or controverted
facts; 2) closely related
to the appellant's trial court arguments; and 3) could have
been gleaned from the pleadings." McConnell
v. State, Dep't of Health & Soc. Servs., Div. of
Med. Assistance, 991 P.2d 178, 183 (Alaska 1999) (internal quotations and citations
omitted). In this case, all three of these requirements are
met. We also note that David was effectively acting pro
se at the time and that his pleadings are therefore
held to less stringent standards. See
DeNardo v. Calista Corp., 111 P .3d 326, 330 (Alaska 2005).
Alaska's one-year statute of limitations applies.
*4 Even though T.N.F. is not binding precedent, we nevertheless agree with the reasoning
of the plurality opinion on the limitations issues.
Congress did not include a generally applicable statute of limitations
in ICWA. It specified a two-year statute of limitations for
one class of ICWA claims, those brought under §
1913(d). The absence of a general statute of limitations is
"a void which is commonplace in federal statutory law." [FN23] The United States Supreme Court has held that "[w]hen
Congress has not established a time limitation for a federal
cause of action, the settled practice has been to adopt
a local time limitation as federal law if it is
not inconsistent with federal law or policy to do so." [FN24] Apart from T.N.F., no reported case has discussed the issue of what statute
applies for claims brought under §
1914 of ICWA. [FN25] But courts have "borrowed" state statutes of limitations in
considering the timeliness of claims under many federal statutes, including
the Employee Retirement Income Security Act, [FN26] the False Claims Act, [FN27] the Worker Adjustment and Retraining Notification Act, [FN28] the Labor-Management Reporting and Disclosure Act, [FN29] 42 U.S.C. §
1983, [FN30] the Individuals with Disabilities Education Act, [FN31] and the Labor Management Relations Act. [FN32]
of Regents v. Tomanio, 446 U.S. 478, 483 (1980) (holding that plaintiff's 42 U.S.C.
1983 claim was subject to New York statutes of limitations).
v. Garcia, 471 U.S. 261, 266-67 (1985); see
also Graham County Soil & Water Conservation Dist. v. United
States, 125 S.Ct. 2444, 2448 (2005); N.
Star Steel Co. v. Thomas, 515 U .S. 29, 33-34 (1995); Reed
v. Transp. Union, 488 U.S. 319, 323-24 (1989). Although Congress passed a "catch-all"
law in 1990 that established a four-year limitations period for
all federal claims without limitations provisions, that statute only applies
to civil actions "arising under an Act of Congress enacted
after the date of the enactment of this section." 28
1658. All of the ICWA provisions at issue in this
case were enacted in their current form in 1978, well
before the 1990 enactment of the federal catch-all statute of
A few treatises have discussed whether state statutes of limitations
apply to ICWA claims, but their discussions are generally cursory. See,
e.g., THOMAS JACOBS, CHILDREN AND THE LAW: RIGHTS AND OBLIGATIONS §
5:13 (2006), available
at Westlaw, CALRO §
5:13 (concluding that state statutes of limitations apply to adoption
challenges under ICWA); CONFERENCE OF WESTERN ATTORNEYS GENERAL, AMERICAN INDIAN
LAW DESKBOOK 496 (3d ed.2004) (stating that state limitations periods
are applicable to ICWA claims); Jesse C. Trentadue & Myra
A. DeMontigny, The
Indian Child Welfare Act of 1978: A Practitioner's Perspective, 62 N.D. L.REV. 487, 536 (1986) (concluding that claims under
1914 may be subject to state limitations periods unless challenged
order is void ab initio), cited
in T.N.F., 781 P.2d at 979; B.J. JONES, THE INDIAN CHILD WELFARE
ACT HANDBOOK 101 (1995) (noting that "there does not appear
to be any statute of limitations associated with the use
Cal. Retail Clerks Unions & Food Employers Joint Pension Trust
Fund v. Jumbo Mkts., Inc., 906 F.2d 1371, 1372 (9th Cir.1990).
County, 125 S.Ct. at 2453 (holding that no False Claims Act
time limitations applied and remanding for determination of which state
statute of limitations to borrow).
Star Steel, 515 U.S. at 33-35.
FN29. Reed, 488 U.S. at 323-24.
FN30. Tomanio, 446 U.S. at 483-484.
Sch. Dist. Nos. 4 & 1 v. Keenan, 82 F.3d 912, 918 (9th Cir.1996).
v. Dallaire, 649 F.2d 1362, 1367 (9th Cir.1981).
David asks us to hold that no limitations period whatsoever
applies to his §
1914 challenge to the adoption decree. But he cites no
case in which a court has held that no statute
of limitations applies to a federal statutory claim. Although courts
have occasionally suggested that certain federal causes of
action have no applicable statutes of limitation, such causes of
action appear to be rare. [FN33] Courts, reasoning that the proposed state statute of limitations
would be an "unsatisfactory vehicle[ ] for the enforcement of
federal law," do sometimes hold that a particular state statute
of limitations should not be applied to a given federal
claim. [FN34] But in such cases-- none of which involves ICWA--courts
have either borrowed a different state statute of limitations, [FN35] or they have "used timeliness rules drawn from federal
law--either express limitations periods from related federal statutes, or such
alternatives as laches." [FN36]
e.g., Rhines v. Weber, 544 U.S. 269, 274 (2005) (noting that until 1996 there
was no statute of limitations on federal habeas corpus petitions); Oneida
County v. Oneida Indian Nation, 470 U.S. 226, 243 (1985) (noting that certain land claims
under the Indian Claims Limitation Act of 1982 are exempt
from the limitations provisions in 28 U.S.C. §
v. Bermudez, 43 F.3d 1251, 1260 (9th Cir.1994); see
also DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 161-63 (1983).
FN35. Barajas, 43 F.3d at 1260.
FN36. DelCostello, 462 U.S. at 162.
Applying Alaska's one-year statute of limitations for challenging adoption decrees
to ICWA adoption challenges not based on fraud or duress
does not conflict with federal law or policy. As noted
above, Congress regularly creates private rights of action without statutes
of limitations. It is reasonable to assume that Congress's enactment
of ICWA without a general statute of limitations was informed
by "the settled practice" of borrowing statutes of limitations from
state law. [FN37] If Congress had intended to exempt claims under §
1914 from state statutes of limitations, it could have easily
done so with explicit statutory language. And indeed, if Congress
had intended that §
1914 claims challenging placements, including adoptions, would be subject to
no time limitations despite the disruptive consequences of delay, one
would expect some indication of that intent in ICWA's legislative
history. We are aware of no such indication of legislative
FN37. Wilson, 471 U.S. at 266-67.
*5 Moreover, §
1913(d) indicates that Congress must have intended to allow
state limitations periods to govern ICWA claims. Congress there adopted
a two-year federal statute of limitations for claims that a
parent's relinquishment of rights was obtained through fraud or duress,
unless state law provides for a longer limitations period . [FN38] Subsection 1913(d) demonstrates that Congress was aware of, and
endorsed, the practice of borrowing state statutes of limitations. It
suggests that the drafters understood that state limitations periods would
govern ICWA challenges unless Congress specified otherwise. Congress did so
only as to claims brought under §
25 U.S.C. §
the entry of a final decree of adoption of an
Indian child in any State court, the parent may withdraw
consent thereto upon the grounds that consent was obtained through
fraud or duress and may petition the court to vacate
such decree. Upon a finding that such consent was obtained
through fraud or duress, the court shall vacate such decree
and return the child to the parent. No
adoption which has been effective for at least two years
may be invalidated under the provisions of this subsection unless
otherwise permitted under State law.
added.) As the T.N.F. plurality pointed out, the legislative history explains that "[t]his right
is limited to two years after entry of the
the decree unless a longer period is provided by state
law." T.N.F., 781 P.2d at 979 (quoting H.R. No. 95-1386, 95th Cong.,
2d Sess. 23 (1978), reprinted
in 1978 U .S.C.C.A.N. 7530, 7545-46).
Obtaining a parent's consent to termination by fraud or duress
is arguably one of the most egregious placement practices addressed
by ICWA. Congress's decision to adopt a minimum limitations period
only for fraud and duress claims suggests that it was
comfortable with the possibility that shorter state limitations periods would
govern claims brought under other ICWA provisions. Conversely, it is
unlikely that Congress would have limited the time for bringing
claims under §
1913(d) if it intended that other §
1914 claims would be subject to no time limits.
Also, we agree with the reasoning of the T.N.F. plurality that §
1913(d) implicitly recognizes the important policy "that at some point
adoptions must become final." [FN39] Although a primary purpose of ICWA is to "promote
the stability and security of Indian tribes and families" by
preventing the unwarranted breakup of Indian families, ICWA is also
intended to "protect the best interests of Indian children." [FN40] As we noted in another case:
FN39. T.N.F., 781 P.2d at 980.
25 U.S.C §
custody results in the rapid development of lasting and powerful
psychological ties between adoptive parents and children, especially young children.
Once formed, these bonds can seldom be severed without irreparable
damage to the child's well-being.[ [FN41]]
v. Lambert, 951 P.2d 436, 441-42 (Alaska 1998); see
also T.N.F., 781 P.2d at 980 ("To allow collateral attacks on final
adoption decrees at any time threatens to unreasonably disrupt the
upbringing of the adopted child.").
ICWA is remedial legislation and must be liberally construed
in favor of Indians, [FN42] but we do not think that an interpretation of
ICWA that would completely disregard Indian children's interests in finality
and stability would be consistent with Congress's intent in enacting
the statute. We therefore hold that Alaska's one-year statute of
limitations provides an appropriate balance between the important federal rights
of Indian tribes and families and the best interests of
In re L.A.M., 727 P.2d 1057, 1060 (Alaska 1986).
David argues that §
1921 of ICWA prohibits us from applying any statute of
limitations to ICWA claims. Section 1921 states:
any case where State or Federal law applicable to a
child custody proceeding under State or Federal law provides a
higher standard of protection to the rights of the parent
or Indian custodian of an Indian child than the rights
provided under this subchapter, the State or Federal court shall
apply the State or Federal standard.[ [FN43]]
25 U.S.C. §
David contends that because ICWA provides no statute of
limitations, ICWA is a "Federal law ... provid[ing] a higher
standard of protection to the rights of the parent" and
should therefore trump Alaska's statute of limitations.
*6 Section 1921, on its face, does not support David's interpretation.
That provision requires that "State or Federal law" prevail if
it provides more protection "than the rights provided under this
subchapter." Because the statute requires a comparison between "State or
Federal law" and "the rights provided under this subchapter," "State
or Federal law" can only mean a state or federal
law other than ICWA. Furthermore, a special provision is not
necessary to ensure that a federal statute of limitations--or, as
alleged in this
case, a purported federal policy that lawsuits be allowed at
any time-- prevails over a conflicting state statute of limitations.
Basic federal preemption principles require the same result. [FN44] David's argument fails because he cannot show that Congress's
silence on the limitations issue indicates an intention to allow
ICWA challenges at any time. Section 1921 does not shed
any additional light on this question.
State v. Dupier, 118 P.3d 1039, 1049 (Alaska 2005) (noting that state laws
are preempted "if there is an actual conflict between federal
and state law").
Alaska Statute 25.23.140(b) provides that, subject to the disposition of
an appeal, an adoption cannot be questioned upon the expiration
of one year after the decree is issued. The superior
court issued the adoption decree on September 6, 2002. [FN45] Per AS 25.23.140(b), any challenge to the adoption filed
after September 4, 2003 was untimely. David's October 21, 2004
petition to invalidate Erin's adoption was therefore time-barred.
AS 25.23.140(b) refers to the date on which an adoption
decree is "issued" without defining that term. Because David's petition
was late under any possible definition of "issued," we need
not determine its precise
definition in this context. Rather, we assume without deciding that
an adoption decree is "issued" on the date it is
distributed to the parties, in this case, on September 6,
2002. Cf. Alaska R. Civ. P. 58.1 (providing for judgments, that time
for appeal, review, and reconsideration begins running on date shown
in clerk's certificate of distribution entered on written judgment).
For the foregoing reasons, we AFFIRM the decision of the
superior court denying David's petition to invalidate the adoption.
BRYNER, Justice, dissenting.
For the reasons expressed by Justice Rabinowitz in his dissenting
opinion in In
re Adoption of T.N.F., [FN1] I dissent from the court's decision that David's challenge
under ICWA §
1914 is governed by Alaska's statute of limitations. In my
view, Justice Rabinowitz's dissent bears repetition here because it persuasively
responds to the interpretation of congressional intent adopted by today's
781 P.2d 973, 984 (Alaska 1989).
the unambiguous text of §
1913(a), I conclude Congress intended that any consent obtained in
violation of the strict procedural safeguards governing termination of parental
rights was to have no force or effect. It follows
that an adoption based on an invalid consent is void ab
initio, and that a petition to vacate such a void decree
can, pursuant to §
1914, be filed at any time.
the factual circumstances of this case are highly unusual and
there are significant considerations which militate against disturbing any parent-adoptive
child relationship. Nevertheless, I believe that my reading of §§
1913(a) and 1914 is consonant with Congress' overall intent in
enacting the Indian Child Welfare Act and with the specific
intent reflected in the procedural safeguards provided in §
is apparent that the provisions of §
1913(a) were designed to increase the likelihood that a consent
to termination of parental rights was in fact voluntarily given.
If, but only if, ICWA's procedures are followed does the
Act achieve its purpose to establish "minimum Federal standards for
the removal of Indian children from their families." 25 U.S.C.
1902 (Supp.1987). If, but only if, such procedures have been
followed should a parent of an Indian child need allege
fraud, duress, or other misconduct.
*7 I cannot agree that the absence of fraud or duress
limits the protections of §
1913(d) delimits minimum not maximum protection; it expands not contracts
the rights of Indian parents. The majority instead construes the
narrow provision of §
1913(d) to restrict the broad scope of ICWA and hobble
The legislative history of ICWA discloses that Congress was aware
of the following considerations:
decision to take Indian children from their natural homes is,
in most cases, carried out without due process of law....
cases do not go through an adjudicatory process at all,
since the voluntary waiver of parental rights is a device
widely employed by social workers to gain custody of children.
Because of the availability of waivers and because a great
number of Indian parents depend on welfare payments for survival,
they are exposed to the sometimes coercive arguments of welfare
See H.R.Rep. No. 1386, 95th Cong., 2d Sess. 11
U.S.Code Cong. & Admin. News 7530, 7533.[ [FN2]]
FN2. Id. at 984-85 & n. 1.