as: 718 P.2d 150)
Court of Alaska.
the Matter of J.M. DOB: 02/04/84
Minor Under the Age of Eighteen (18) Years.
April 25, 1986.
Granted in Part and Opinion Amended June 6, 1986.
Proceeding was instituted to
place an Indian child in foster care and to terminate parental rights
of mother in child. After village council intervened, the
Superior Court, Fourth Judicial District, Fairbanks, James R. Blair, J.,
denied council's motion to dismiss for lack of jurisdiction and, thereafter,
entered order placing child in foster care and terminating mother's parental
rights, and mother and village council appealed. The Supreme
Court, Moore, J., held that letter which was written by the chief of the
village council to a social worker in the Division of the Family and Youth
Services and which contained a recommendation by the chief regarding termination
of parental rights, while implying an understanding by the chief that
the state had taken custody of the Indian child in question in order to
provide foster care payments, could not be read as expressly waiving tribal
jurisdiction over Indian
child in question in favor of state court and, in absence of evidence
that chief was authorized by village constitution or otherwise to act
unilaterally on behalf of village counsel, could not be viewed as impliedly
waiving such jurisdiction.
Order vacated and case remanded.
council operated under the code or custom of an "Indian
tribe" and, under the Indian Child Welfare Act, was vested
with exclusive jurisdiction as a "tribal court" over matter of
custody of Indian child and, in absence of a waiver,
was not precluded from claiming same in proceedings in state
court to place child in foster care and terminate natural
mother's parental rights. AS 47.10.010(a)(2)(A); Alaska Native Claims Settlement Act,
11(b)(1), 25 U.S.C.A. §§ 1602(c),
1610(b)(1); Indian Child Welfare Act of 1978, § 101(a),
25 U.S.C.A. § 1911(a).
which was written by the chief of the village council
to a social worker in the Division of the Family
and Youth Services and which contained a recommendation by the
chief regarding termination of parental rights, while implying an understanding
by the chief that the state had taken custody of
the Indian child in question in order to provide foster
care payments, could not be read as expressly waiving tribal
jurisdiction over Indian child in question in favor of state
court and, in absence of evidence that chief was authorized
by village constitution or otherwise to act unilaterally on behalf
of village council, could not be viewed as impliedly waiving
such jurisdiction. AS 47.10.010(a)(2)(A); Alaska Native Claims Settlement Act, §§ 3(c),
11(b)(1), 25 U.S.C.A. §§ 1602(c),
1610(b)(1); Indian Child Welfare Act of 1978, § 101(a),
25 U.S.C.A. § 1911(a).
*151 Chris Bataille, Law Offices of Charles E. Cole, Fairbanks, for
D. Rebecca Snow, Asst. Atty. Gen., Fairbanks, and Harold M.
Brown, Atty. Gen., Juneau, for appellee.
Blair McCune, Asst. Public Defender, Fairbanks, and Dana Fabe, Public Defender,
Anchorage, Guardian Ad Litem.
Michael J. Walleri, Tanana Chiefs Conference, Inc., Fairbanks, for intervenor
Village of Kaltag.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
We are asked to decide whether a state superior court's
termination of parental rights to an Indian child complied with
the commands of the Indian Child Welfare Act, 25 U.S.C.
(1982). The child's mother asserts that the requisite burden of
proof was not met to justify the termination of her
parental rights. The child's Indian tribe, the Native Village of
Kaltag, contends that the tribal court had exclusive jurisdiction over
the matter and that the state court proceedings should have
been dismissed for lack of jurisdiction. Because we conclude that
the superior court erred in finding the village had waived
its jurisdiction, we vacate the termination of parental rights.
J.M., the child whose future is at issue in this
case, was born on February 4, 1984,
to A.M., an Athabascan Indian from the village of Kaltag.
J.M.'s father is unknown. In late March, J.M. became seriously
ill and village health aides recommended medical evacuation. A.M. flew
to Fairbanks and hospitalized her infant son. When doctors authorized
J.M.'s discharge nearly two weeks later, A.M. failed to pick
up her child.
The Kaltag Village Council learned of the situation and issued
a written order, dated April 17, assuming custody of J.M.
At the Council's direction, J.M. was released from the hospital
and placed in a foster home in Galena.
A few weeks later Kaltag Village Chief Franklin Madros contacted
Charles Knittel, a state Division of Family and Youth Services
social worker in Galena, to request state foster care payments
for J.M. Knittel informed the chief that state policy requires
a child to be in state custody before foster care
payments will be provided. Knittel explained that he would have
to file a state petition for temporary custody. Chief Madros
told Knittel to do what was necessary to establish J.M.'s
eligibility for assistance.
On May 23 the Department of Health and Social Services
(hereafter State) filed a petition in state court for temporary
custody of J.M.; the petition was granted the next day.
On August 7 the State filed a petition for an
adjudication of J.M. as a child in need of aid,
pursuant to AS 47.10.010(a)(2)(A).
In late September the Native Village of Kaltag (hereafter Kaltag)
moved to intervene
as a matter of right under 25 U.S.C. § 1911(c). [FN1] That section of the Indian Child Welfare Act (ICWA)
authorizes an Indian child's tribe to intervene in state court
proceedings regarding foster care placement of the child or termination
of *152 parental rights. Intervention was granted, and Kaltag participated in the
adjudication hearing on October 8.
25 U.S.C. § 1911(c)
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child, the
Indian custodian of the child and the Indian child's tribe
shall have a right to intervene at any point in
During the hearing, counsel for Kaltag noted the possibility of
a jurisdictional question under the ICWA, and reserved the right
to litigate it later. Kaltag entered into the record a
copy of the Village Council's April order assuming custody of
J.M. The State introduced a letter dated October 7 from
Chief Madros to the court stating that J.M. "should remain
in the custody of the State." The letter apparently was
written by Knittel, signed by the chief, and delivered to
the court by Knittel. It was admitted into evidence without
The next day the court entered an order adjudicating J.M.
a child in need of aid
and placing him in the custody of the State. The
court scheduled a November 19 hearing to determine whether parental
rights should be terminated.
On November 8 Kaltag filed a motion to dismiss the
proceedings involving J.M. for lack of state court jurisdiction. Kaltag
claimed exclusive jurisdiction under section 1911(a) of the ICWA, and
asserted that the village had not relinquished its jurisdiction to
the State. Section 1911(a) provides that "[w]here an Indian child
is a ward of a tribal court, the Indian tribe
shall retain exclusive jurisdiction, notwithstanding the residence or domicile of
the child." 25 U.S.C. § 1911(a).
The trial court denied the motion to dismiss. The court
found that Kaltag, through the actions of Chief Madros, had
"relinquished custody [of J.M.] to the State of Alaska and
... [was] estopped from claiming otherwise."
On November 19 the trial court conducted a hearing to
determine whether A.M.'s parental rights to J.M. should be terminated.
After hearing testimony from social workers and several members of
A.M.'s tribe, the court issued findings of fact and an
order terminating A.M.'s parental rights. The order included a finding
that the court had jurisdiction over the parties and subject
matter "because the Village of Kaltag released whatever jurisdiction it
might have claimed in order to obtain state funded foster
care for [J.M.]."
These appeals by Kaltag and the mother followed. Kaltag contends
the state court should have dismissed the proceedings for lack
of jurisdiction and allowed
the tribal court to determine J.M.'s fate. The mother asserts
that the termination of her parental rights was erroneous because
it was not supported by the burden of proof required
under the ICWA.
II. Should the superior court have dismissed the proceedings for
lack of jurisdiction?
The statutory framework
It is agreed that the Indian Child Welfare Act, 25
U.S.C. §§ 1901-1963,
applies to the proceedings involving J.M., who is an Indian
child as defined in the act. See 25 U.S.C. § 1903(4).
When Congress enacted the ICWA in 1978 it declared a
two-fold purpose: to protect the best interests of Indian children
and to promote the stability and security of Indian tribes
and families. Id. § 1902.
To further this national policy, Congress enacted the jurisdictional provisions
in section 1911(a):
Indian tribe shall have jurisdiction exclusive as to any State
over any child custody proceeding involving an Indian child who
resides or is domiciled within the reservation of such tribe,
except where such jurisdiction is otherwise vested in the State
by existing Federal law. Where
an Indian child is a ward of a tribal court,
the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence
or domicile of the child.
25 U.S.C. § 1911(a)
Kaltag argued before the trial court that when the Village
Council issued its order
assuming custody of J.M., he became a "ward of a
tribal court" over whom the tribe had exclusive jurisdiction under
section 1911(a). Kaltag further asserted that it never relinquished its
jurisdiction, and that the trial court therefore was required to
dismiss the state court proceedings. *153 The State did not dispute that J.M. was a ward
of a tribal court or that Kaltag had exclusive jurisdiction
under section 1911(a), but argued that Kaltag had waived its
jurisdiction by releasing custody of J.M. to the State. Thus,
the question before us is a narrow one: did the
trial court err in finding that the tribe had waived
its exclusive jurisdiction?
Although we are not asked to decide whether Kaltag is
an "Indian tribe" or whether the Village Council is a
"tribal court" within the meaning of the ICWA, we will
describe the legal bases on which Kaltag relies to justify
these conclusions. Kaltag's position is that the ICWA defines "Indian
tribe" to mean "any Indian tribe, band, nation, or other
organized group or community of Indians ... including any Alaska
Native village as defined in section 1602(c) of Title 43."
25 U.S.C. § 1903(8).
Section 1602(c), which is part of the Alaska Native Claims
Settlement Act, recognizes a long list of Alaska villages, including
Kaltag, to be "Native villages" if they had a population
of at least 25 Natives at the time of the
1970 census. See 43 U.S.C. §§ 1602(c),
1610(b)(1) (1982). Thus, Kaltag concludes it is an "Indian tribe"
within the meaning of the ICWA.
The ICWA defines "tribal court" broadly as:
court with jurisdiction over child custody proceedings and which is
either a Court of Indian Offenses, a court established and
operated under the code or custom of an Indian tribe,
or any other administrative body of a tribe which is
vested with authority over child custody proceedings.
25 U.S.C. § 1903(12).
Kaltag submits that its Village Council is authorized to serve
as its tribal court over child custody proceedings. The village
constitution empowers the Council to "act as judges of minor
offences [sic] or small differences among village residents." Kaltag Const.
and Laws § 2,
part 9. The constitution prohibits the Council from acting upon
"serious matters." Id. § 2,
part 10. Kaltag construes "minor offenses" and "small differences" to
include misdemeanors, village ordinance violations, domestic relations and small claims,
while "serious matters" are felony criminal offenses. [FN2]
This interpretation of Kaltag's constitution, which was drafted prior to
Alaska statehood, appears consistent with the historical distinction between tribal
and federal law and order functions. See Cohen, Handbook of Federal Indian Law 332-48 (1982 ed.). Many
judicial decisions have recognized the broad scope of tribal authority
in the area of domestic relations among tribal members. See,
e.g., Fisher v. District
Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976);
also H.R.Rep. No. 95-1386, 95th Cong., 2d Sess. 35, reprinted
in 1978 U.S.Code Cong. & Ad.News 7530, 7558.
Kaltag states that its Village Council is the sole governing
body of the tribe, and performs legislative, executive and judicial
functions. While this integration of functions is uncommon in many
political structures, numerous courts have recognized the unique form of
tribal governments and tribal dispute resolution. In Howlett
v. Salish and Kootenai Tribes of Flathead Reservation, 529 F.2d 233 (9th Cir.1976), the plaintiffs challenged the authority
of the tribal council to judge whether aspiring candidates were
qualified for council membership. The Ninth Circuit agreed with the
district court's analysis:
lawyers, used to thinking of courts as the interpretative arm
of government, it does seem strange that a single legislative
and executive arm of government should be permitted to interpret
the law, but we deal here not with state law
... but with Indian law enacted by Indians. The Indians,
except as inhibited by the Indian Civil Rights Act, are
free to structure their government as they see fit. Nothing
precludes the Indians from vesting, as they did, the power
of interpretation in a tribal council rather than in a
Id. at 240.
Similarly, the broad definition of "tribal court" included in the
ICWA reflects Congressional awareness that tribal justice systems may differ
from Anglo-American *154 systems. Kaltag suggests that, by defining a tribal court to
include "any other administrative body of a tribe which is
vested with authority over child custody proceedings," 25 U.S.C. § 1903(12),
the ICWA recognizes that a village council such as Kaltag's
may operate as a "tribal court."
Did Kaltag waive its jurisdiction?
In deciding whether the trial court was correct in finding
a waiver of jurisdiction, the state suggests that the "clearly
erroneous" standard of review is applicable. We conclude that a
broader scope of review is appropriate. Since the trial court
finding was based on non-testimonial, documentary evidence, we are in
as good a position as the trial court to exercise
independent judgment to determine the facts. See
Fairbanks Publishing Co. v. Pitka, 445 P.2d 685, 688 (Alaska 1968); see
also State v. Phillips, 470 P.2d 266, 268 (Alaska 1970).
The trial court, in its order denying Kaltag's motion to
dismiss, found that "the Village Council, through Mr. Madros, has
relinquished custody to the State...." When the court subsequently ordered
parental rights terminated, the court reiterated its finding that "the
Village of Kaltag released whatever jurisdiction
it might have claimed in order to obtain state funded
foster care for [J.M.]." The State contends that the evidence
the trial court had before it fully supported the finding
that jurisdiction had been waived. We disagree.
The evidence included: 1) the Council's April order assuming tribal
custody of J.M.; 2) the State's petition for temporary custody
and its petition for adjudication of a child in need
of aid; both petitions included statements that the State's assistance
had been solicited by the Kaltag council chief; 3) the
October 7 letter to the court from Chief Madros; and
4) a document filed by Kaltag, pursuant to 25 U.S.C.
specifying a home in Galena as "the appropriate foster home
for J.M. during the term of State custody."
On the basis of this evidence, we cannot find that
the village knowingly waived its jurisdiction. None of the tribal
documents--the custody order, the chief's letter, or the document specifying
a foster home--referred to "jurisdiction" or mentioned a transfer of
jurisdiction. Furthermore, none of the evidence before the trial court
indicated a clear intent by the Village Council to waive
its authority to determine J.M.'s ultimate placement.
The trial court apparently relied heavily on the letter written
by Chief Madros. It stated that, "[a]s Chief of the
Kaltag Traditional Council," he had discussed J.M.'s case with state
social worker Knittel, and that Knittel also had talked with
members of A.M.'s family. The letter stated that the people
contacted by Knittel "are in agreement that [J.M.] should remain
in the custody of the State, and that his mother's
rights to him should be terminated." The letter further stated:
"I ... recommend that the State Court should approve the
termination of [A.M.'s] parental rights...."
Kaltag argues that the village constitution does not empower the
chief to act on behalf of the Council; therefore, any
unilateral action by the chief would be void as an
ultra vires act. Kaltag notes that its constitution vests authority,
including judicial authority, to act for the village in a
five-member council and provides for one member to be elected
president. See Kaltag Const. and Laws § 1,
parts 3 and 8; § 2,
parts 2, 7, 8 and 9. The constitution authorizes the
president, who also is referred to as the council chief,
to chair council meetings and to "represent the village interests
in dealing with outsiders." Id. § 2,
part 4. However, it does not authorize the president to
act unilaterally on behalf of the council. Consequently, Kaltag argues
that even if the chief's letter is viewed as intending
to waive tribal jurisdiction, such a waiver could occur only
through an official action of the Village Council. We agree. [FN3]
We reject the State's claim that Kaltag's argument regarding the
limited nature of the chief's power was not raised below
and therefore should not be considered on appeal. The village
made the following statement
in its memorandum filed in the trial court in support
of the village's motion to dismiss: "On its face, the
Chief's letter is nothing more than an expression of his
individual desire. Only the Council has the power to release
custody of the child to the State...." The memorandum further
noted that the State "cannot produce a council order transferring
the case to the State forum. Under such circumstances, it
is certain that the village retains jurisdiction...." We conclude that
the argument Kaltag raises here was adequately presented to the
State notes that Kaltag failed to provide the trial court
with a copy of the village constitution. However, this omission
does not preclude our consideration of the document. See Alaska R.Evid. 202, 203(b). Furthermore, the ICWA requires that every
state "give full faith and credit to the public acts,
records, and judicial proceedings of any Indian tribe applicable to
Indian child custody proceedings to the same extent that such
entities give full faith and credit to the public acts,
records, and judicial proceedings of any other entity." 25 U.S.C.
Furthermore, in our view Chief Madros' letter does not even
purport to waive tribal *155 jurisdiction over J.M. At most, the letter states a recommendation
by the chief regarding termination of parental rights, and implies
an understanding by the chief that the State had taken
custody of J.M. in
order to provide foster care payments. The fact remains that
the only official Village Council document before the court was
an order assuming tribal custody of J.M. There is no
evidence that the Council ever modified or rescinded its order,
nor is there any other evidence of an express waiver
To imply a waiver of jurisdiction would be inconsistent with the ICWA
objective of encouraging tribal control over custody decisions affecting Indian
children. In enacting the ICWA, Congress "expressed its clear preference
for ... deferring to tribal judgment on matters concerning the
custody of tribal children...." Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed.Reg. 67,585 (1979). The guidelines published by
the Department of Interior to aid courts in interpreting the
ICWA further provide that state court proceedings involving custody of
Indian children "shall follow strict procedures and meet stringent requirements"
to justify any result contrary to the preferences expressed in
the ICWA. Id. at 67,586.
We note that courts historically have been reluctant to imply
a waiver of Indian rights. When the ICWA's exclusive jurisdiction
provisions were enacted, Congress sought to confirm the holding in
a line of state and federal cases that a tribe
has exclusive jurisdiction over an Indian child who resides or
is domiciled on a reservation, and Congress defined "reservation" very
broadly. [FN4] See H.R.Rep. No. 1386, 95th Cong., 2d Sess. 21, reprinted
U.S.Code Cong. & Ad.News 7544. In two cases noted in
the House Report the courts strained to avoid implying a
waiver of tribal jurisdiction. See
Wisconsin Potowatomies v. Houston, 393 F.Supp. 719 (W.D.Mich.1973); Wakefield
v. Little Light, 276 Md. 333, 347 A.2d 228 (1975).
The ICWA defines "reservation" to mean "Indian country as defined
in section 1151 of Title 18 and any lands ...
title to which is either held by the United States
in trust for the benefit of any Indian tribe or
individual or held by any Indian tribe or individual subject
to a restriction by the United States against alienation." 25
U.S.C. § 1903(10).
Section 1151 of Title 18 defines "Indian country" to include
"(a) all land within the limits of any Indian reservation
under the jurisdiction of the United States Government ... (b)
all dependent Indian communities within the borders of the United
States ... and (c) all Indian allotments, the Indian titles
to which have not been extinguished...." 18 U.S.C. § 1151
In the Potowatomies case, the court ruled that a tribe had not waived
its exclusive jurisdiction by permitting a tribal member to seek
custody of three Indian children in state court. 393 F.Supp.
at 734. The court concluded:
tribe itself must have, by some prior act performed through
a legally recognized
procedure, conferred jurisdiction upon the [state] court.
It is sufficient that the tribe has shown that, according
to its standards, it did not abandon interest in the
children or jurisdiction over them. Relinquishment of Indian rights is
not to be lightly inferred. Doubts as to the intent
of a law, or a treaty, are to be resolved
in favor of the Indians, and [such laws] are to
be construed as the Indians understood their meaning.
*156 Id. at 733-34 (citation omitted). While this pre-ICWA case is significant
because Congress sought to confirm its holding, the case also
states a well-established principle that the waiver of Indian rights
should not be easily inferred. See Cohen, Handbook of Federal Indian Law 283 (1982 ed.). Case
law also holds that procedural requirements must be strictly complied
with before a state can exercise jurisdiction over a matter
that otherwise would be within a tribe's jurisdiction. See,
e.g., Blackwolf v. District Court, 158 Mont. 523, 493 P.2d 1293, 1295 (1972).
With these principles in mind, we hold that the trial
court erred in finding that Kaltag had waived its jurisdiction
over J.M. There certainly was no evidence of an express
waiver, and it would be inappropriate to find an implied
waiver based on the evidence presented here. Because one of
the objectives of the ICWA is to insure that tribes
fully understand and have an opportunity to exercise
their rights under the act, see,
e.g., 25 U.S.C. § 1912(a),
we conclude that a tribe's waiver of exclusive jurisdiction must
be express, unequivocal and knowingly made. Requiring a written waiver
from the tribal entity authorized to make such a decision
will help insure that a tribe has notice of the
rights it is giving up, and will avoid the confusion
that occurred in this case. [FN5]
The requirement of a written waiver will benefit both the
state and the Indian tribe involved. By affording both parties
a clear understanding whether the tribe is waiving jurisdiction to
determine a child's ultimate placement, the need for litigation should
be avoided. Also, the parties will have a solid basis
for negotiating an agreement, if they so choose, regarding the
care and custody of an individual child and whether the
state is to provide foster care payments. See
infra note 6 for a discussion of 25 U.S.C. § 1919(a),
which authorizes such agreements.
Because we conclude that the trial court erred in failing
to dismiss the proceedings involving J.M., we do not decide
whether the termination of parental rights was proper. That determination
will be made in the tribal forum. [FN6]
One final argument merits mention. Kaltag suggests that even if
the tribe did waive its exclusive jurisdiction, the state could
not assert jurisdiction absent a formal agreement under section 1919(a)
of the ICWA. Section 1919(a) authorizes tribes and states to
enter into mutual agreements "respecting care and custody of Indian
children and jurisdiction over child custody proceedings, including agreements which
may provide for orderly transfer of jurisdiction on a case-by-case
basis...." 25 U.S.C. § 1919(a).
However, we note that the section merely "authorize[s]" such agreements;
it does not purport to preclude the state's exercise of
jurisdiction where a tribe has clearly expressed an intent to
waive jurisdiction. Cf.
Native Village of Stevens v. Smith, 770 F.2d 1486, 1489 (9th Cir.1985).
The superior court order terminating the parental rights of A.M.
is VACATED, and the case is REMANDED for dismissal of
the state court proceedings.
718 P.2d 150